Bill Text: OR HB4146 | 2012 | Regular Session | Enrolled
Bill Title: Relating to expungement; and declaring an emergency.
Spectrum: Slight Partisan Bill (Democrat 9-4)
Status: (Passed) 2012-03-05 - Chapter 23, (2012 Laws): Effective date March 5, 2012. [HB4146 Detail]
Download: Oregon-2012-HB4146-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2012 Regular Session
Enrolled
House Bill 4146
Sponsored by Representative J SMITH; Representatives BREWER,
BUCKLEY, CONGER, FREDERICK, GELSER, HARKER, KENY-GUYER,
MATTHEWS, READ, TOMEI, WEIDNER, Senator WINTERS (at the request
of Oregon Center for Christian Voices) (Presession filed.)
CHAPTER ................
AN ACT
Relating to expungement; creating new provisions; amending ORS
419A.262; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 419A.262 is amended to read:
419A.262. (1) An expunction proceeding shall be commenced in
the county where the subject person resided at the time of the
most recent termination.
(2) Upon application of either a person who is the subject of a
record or a juvenile department, or upon its own motion, the
juvenile court shall order expunction if, after a hearing when
the matter is contested, it finds that:
(a) At least five years have elapsed since the date of the
person's most recent termination;
(b) Since the date of the most recent termination, the person
has not been convicted of a felony or a Class A misdemeanor;
(c) No proceedings seeking a criminal conviction or an
adjudication in a juvenile court are pending against the person;
(d) The person is not within the jurisdiction of any juvenile
court on the basis of a petition alleging an act or behavior as
defined in ORS 419B.100 (1)(a) to (c) and (f) or 419C.005; and
(e) The juvenile department is not aware of any pending
investigation of the conduct of the person by any law enforcement
agency.
{ + (3)(a) Notwithstanding subsection (2) of this section,
upon application of a person who is the subject of a record kept
by a juvenile court or juvenile department, upon application of
the juvenile department, or upon its own motion, the juvenile
court, after a hearing when the matter is contested under
subsection (12) of this section, shall order expunction if it
finds that:
(A) The application requests expunction of only that part of
the person's record that involves a charge, allegation or
adjudication based on conduct that if done by an adult would
constitute the crime of prostitution under ORS 167.007; and
(B) The person was under 18 years of age at the time of the
conduct.
(b) Except as provided in subsections (12) and (13) of this
section, there is no waiting period required before the juvenile
court orders expunction under this subsection. + }
Enrolled House Bill 4146 (HB 4146-A) Page 1
{ - (3) - } { + (4) + } In the case of an application by
the juvenile department or of the court acting upon its own
motion, expunction shall not be ordered if actual notice of
expunction has not been given to the person in accordance with
subsection { - (10) - } { + (11) + } of this section unless
the person has reached 21 years of age.
{ - (4) - } { + (5) + } When a person who is the subject of
a record kept by a juvenile court or juvenile department reaches
18 years of age, the juvenile court, after a hearing when the
matter is contested, shall order expunction if:
(a) The person never has been found to be within the
jurisdiction of the court; or
(b) The conditions of subsection (2) { + or (3) + } of this
section have been met.
{ - (5) - } { + (6) + } Expunction shall not be ordered
under this section if actual notice of expunction has not been
given to the person in accordance with subsection { - (10) - }
{ + (11) + } of this section unless the person has reached 21
years of age.
{ - (6) - } { + (7) + } Subsections { - (4) and (5) - }
{ + (5) and (6) + } of this section apply only to cases
resulting in termination after September 13, 1975.
{ - (7) - } { + (8) + } Notwithstanding subsections
(2) { + , (3) + }and { - (4) to (6) - } { + (5) to (7) + }
of this section, upon application of a person who is the subject
of a record kept by a juvenile court or juvenile department, upon
application of the juvenile department, or upon its own motion,
the juvenile court, after a hearing when the matter is contested,
may order expunction of all or any part of the person's record if
it finds that to do so would be in the best interests of the
person and the public. In the case of an application by the
juvenile department or of the court acting upon its own motion,
expunction shall not be ordered if actual notice of expunction
has not been given to the person in accordance with subsection
{ - (10) - } { + (11) + } of this section unless the person
has reached 21 years of age.
{ - (8) - } { + (9) + } When an expunction proceeding is
commenced by application of the person whose records are to be
expunged, the person shall set forth as part of the application
the names of the juvenile courts, juvenile departments,
institutions and law enforcement and other agencies that the
person has reason to believe possess an expungible record of the
person. The juvenile department shall provide the names and
addresses of the juvenile courts, juvenile departments,
institutions and law enforcement and other agencies that a
reasonable search of department files indicates have expungible
records.
{ - (9) - } { + (10) + } When an expunction proceeding is
commenced by application of the juvenile department or upon the
court's own motion, the application or motion shall set forth the
names and addresses of the juvenile courts, juvenile departments,
institutions and law enforcement and other agencies that a
reasonable search of department files indicates have expungible
records and those provided by the subject person.
{ - (10)(a) - } { + (11)(a) + } Notice and a copy of an
application for expunction under subsections (2) to { - (7) - }
{ + (8) + } of this section shall be given to:
(A) The district attorney of the county in which the expunction
proceeding is commenced and the district attorney of each county
in which the record sought to be expunged is kept; and
Enrolled House Bill 4146 (HB 4146-A) Page 2
(B) The person who is the subject of the record if the person
has not initiated the expunction proceeding.
(b) A district attorney who receives notice under this
subsection shall notify the victim of the acts that resulted in
the disposition that is the subject of the application for
expunction and shall mail a copy of the application for
expunction to the victim's last known address.
{ - (11) - } { + (12) + } { + (a) + } Within 30 days of
receiving the notice of application for expunction under
subsection { - (10) - } { + (11) + } of this section, a
district attorney shall give written notice of any objection and
the grounds therefor to the person whose records are to be
expunged and to the juvenile court.
{ + (b) Except as provided in subsection (13)(c) of this
section, + } if no objection is filed the court may decide the
issue of expunction either without a hearing or after full
hearing
{ - pursuant to - } { + under + } subsections { - (12) to
(15) - } { + (13) to (16) + } of this section.
{ - (12) - } { + (13) + } When an expunction is pending
{ - pursuant to - } { + under + } subsections (2) to
{ - (7) - } { + (8) + } of this section, the court may proceed
with or without a hearing, except that:
(a) The court may not enter an expunction judgment without a
hearing if a timely objection to expunction has been filed
{ - pursuant to - } { + under + } subsection { - (11) - }
{ + (12) + } of this section; { - and - }
(b) The court may not deny an expunction without a hearing if
the proceeding is based on an application of the subject { + ;
and
(c) The court shall proceed without a hearing if:
(A) No objection is filed under subsection (12) of this
section;
(B) The application requests expunction of only that part of
the person's record that involves a charge, allegation or
adjudication based on conduct that if done by an adult would
constitute the crime of prostitution under ORS 167.007; and
(C) The person was under 18 years of age at the time of the
conduct + }.
{ - (13)(a) - } { + (14)(a) + } Notice of a hearing on a
pending expunction shall be served on the subject and any
district attorney filing a timely objection { - pursuant to - }
{ + under + } subsection { - (11) - } { + (12) + } of this
section.
(b) When a district attorney receives notice of a hearing for
expunction of a record concerning a youth or youth offender
proceeding under ORS chapter 419C, if the victim of the acts that
resulted in the disposition that is the subject of the
application for expunction requests, the district attorney shall
mail notice of the hearing to the victim's last-known address.
{ - (14) - } { + (15) + } The court shall conduct a hearing
on a pending expunction in accord with the provisions of ORS
419B.195, 419B.198, 419B.201, 419B.205, 419B.208, 419B.310,
419B.812 to 419B.839 and 419B.908. Rules of evidence shall be as
in a hearing to establish juvenile court jurisdiction and as
defined in ORS 419B.310 (3) and 419C.400 (2). The burden of proof
shall be with the party contesting expunction.
{ - (15) - } { + (16) + } At the conclusion of a hearing on
a pending expunction, the court shall issue judgment granting or
denying expunction.
Enrolled House Bill 4146 (HB 4146-A) Page 3
{ - (16) - } { + (17) + } The juvenile court or juvenile
department shall send a copy of an expunction judgment to each
agency subject to the judgment. Upon receipt of a copy of the
judgment, the agency shall comply and, within 21 days of the date
of receipt, return the copy to the juvenile court or juvenile
department with an indorsement indicating compliance.
{ - (17) - } { + (18) + } When all agencies subject to an
expunction judgment have indicated their compliance or in any
event no later than six weeks following the date the judgment was
delivered as required by subsection { - (16) - } { + (17) + }
of this section, the juvenile court shall provide the person who
is the subject of the record with a copy of the expunction
judgment, a list of complying and noncomplying agencies, and a
written notice of rights and effects of expunction. The juvenile
court and juvenile department then shall expunge forthwith all
records which they possess and which are subject to the judgment,
except the original expunction judgment and the list of complying
and noncomplying agencies which must be preserved under seal.
{ - (18) - } { + (19) + } In addition to those agencies
identified in ORS 419A.260 (1)(d), the juvenile, circuit,
municipal and justice courts, and the district and city attorneys
of this state, are bound by an expunction judgment of any
juvenile court of appropriate jurisdiction in this state issuing
an expunction judgment.
{ - (19) - } { + (20) + } Upon entry of an expunction
judgment, the contact that is the subject of the expunged record
shall not be disclosed by any agency. An agency that is subject
to an expunction judgment shall respond to any inquiry about the
contact by indicating that no record or reference concerning the
contact exists.
{ - (20) - } { + (21) + } A person who is the subject of a
record that has been expunged under this section may assert that
the record never existed and that the contact, which was the
subject of the record, never occurred without incurring a penalty
for perjury or false swearing under the laws of this state.
{ - (21) - } { + (22) + } Juvenile courts, by court rule or
by order related to a particular matter, may direct that records
concerning a subject person be destroyed. No { - such - }
records shall be destroyed until at least three years have
elapsed after the date of the subject's most recent termination.
In the event the record has been expunged, the expunction
judgment and list of complying and noncomplying agencies may not
be destroyed, but shall be preserved under seal. The destruction
of records under this subsection does not constitute expunction.
{ - (22) - } { + (23) + } An expunction judgment and list
of complying and noncomplying agencies shall be released from
confidentiality only on order of the court originating the
expunction judgment, based on a finding that review of a
particular case furthers compliance with the expunction
provisions of this chapter.
{ - (23) - } { + (24) + } A subject has a right of action
against any person who intentionally violates the confidentiality
provisions of this section. In { - any such - } { + the + }
proceeding, punitive damages up to an amount of $1,000 may be
sought in addition to any actual damages. The prevailing party
shall be entitled to costs and reasonable attorney fees.
{ - (24) - } { + (25) + } Intentional violation of the
confidentiality provisions of this section by a public employee
is cause for dismissal.
Enrolled House Bill 4146 (HB 4146-A) Page 4
{ - (25) - } { + (26) + } A person who intentionally
releases all or part of an expunged record commits a Class C
misdemeanor.
SECTION 2. { + The amendments to ORS 419A.262 by section 1 of
this 2012 Act apply to applications for expunction made on or
after the effective date of this 2012 Act that involve
terminations that occurred before, on or after the effective date
of this 2012 Act. + }
SECTION 3. { + This 2012 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2012 Act takes effect on its
passage. + }
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Passed by House February 16, 2012
.............................................................
Ramona Kenady Line, Chief Clerk of House
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Passed by Senate February 23, 2012
.............................................................
Peter Courtney, President of Senate
Enrolled House Bill 4146 (HB 4146-A) Page 5
Received by Governor:
......M.,............., 2012
Approved:
......M.,............., 2012
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2012
.............................................................
Kate Brown, Secretary of State
Enrolled House Bill 4146 (HB 4146-A) Page 6
