77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3113
Senate Bill 690
Sponsored by Senator STEINER HAYWARD
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Permits order to set aside conviction of certain sex crimes
under certain circumstances. Permits expungement of juvenile
records related to adjudication for certain sex crimes under
certain circumstances.
Directs Department of State Police to remove certain records
related to sex crimes from Law Enforcement Data System when
conviction is set aside or adjudication is expunged.
A BILL FOR AN ACT
Relating to motions to set aside convictions of certain sex
crimes; amending ORS 137.225, 181.592 and 419A.260.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 137.225, as amended by section 4, chapter 70,
Oregon Laws 2012, is amended to read:
137.225. (1)(a) At any time after the lapse of three years from
the date of pronouncement of judgment, any defendant who has
fully complied with and performed the sentence of the court and
whose conviction is described in subsection (5) of this section
by motion may apply to the court where the conviction was entered
for entry of an order setting aside the conviction; or
(b) At any time after the lapse of one year from the date of
any arrest, if no accusatory instrument was filed, or at any time
after an acquittal or a dismissal of the charge, the arrested
person may apply to the court that would have jurisdiction over
the crime for which the person was arrested, for entry of an
order setting aside the record of the arrest. For the purpose of
computing the one-year period, time during which the arrested
person has secreted himself or herself within or without this
state is not included.
(2)(a) A copy of the motion and a full set of the defendant's
fingerprints shall be served upon the office of the prosecuting
attorney who prosecuted the crime or violation, or who had
authority to prosecute the charge if there was no accusatory
instrument filed, and opportunity shall be given to contest the
motion. The fingerprint card with the notation 'motion for
setting aside conviction,' or 'motion for setting aside arrest
record' as the case may be, shall be forwarded to the Department
of State Police. Information resulting from the fingerprint
search along with the fingerprint card shall be returned to the
prosecuting attorney.
(b) When a prosecuting attorney is served with a copy of a
motion to set aside a conviction under this section, the
prosecuting attorney shall provide a copy of the motion and
notice of the hearing date to the victim, if any, of the crime by
mailing a copy of the motion and notice to the victim's
last-known address.
(c) When a person makes a motion under subsection (1)(a) of
this section, the person must pay a fee of $80 to the Department
of State Police. The person shall attach a certified check
payable to the Department of State Police in the amount of $80 to
the fingerprint card that is served upon the prosecuting
attorney. The office of the prosecuting attorney shall forward
the check with the fingerprint card to the Department of State
Police.
(d) In addition to the fee established under paragraph (c) of
this subsection, when a person makes a motion under subsection
(1)(a) of this section the person must pay the filing fee
established under ORS 21.135.
(3) Upon hearing the motion, the court may require the filing
of such affidavits and may require the taking of such proofs as
the court deems proper. The court shall allow the victim to make
a statement at the hearing. Except as otherwise provided in
subsection { - (14) - } { + (15) + } of this section, if the
court determines that the circumstances and behavior of the
applicant from the date of conviction, or from the date of arrest
as the case may be, to the date of the hearing on the motion
warrant setting aside the conviction, or the arrest record as the
case may be, the court shall enter an appropriate order that
shall state the original arrest charge and the conviction charge,
if any and if different from the original, date of charge,
submitting agency and disposition. The order shall further state
that positive identification has been established by the
Department of State Police and further identified as to
Department of State Police number or submitting agency number.
Upon the entry of the order, the applicant for purposes of the
law shall be deemed not to have been previously convicted, or
arrested as the case may be, and the court shall issue an order
sealing the record of conviction and other official records in
the case, including the records of arrest whether or not the
arrest resulted in a further criminal proceeding.
(4) The clerk of the court shall forward a certified copy of
the order to such agencies as directed by the court. A certified
copy must be sent to the Department of Corrections when the
person has been in the custody of the Department of Corrections.
Upon entry of the order, the conviction, arrest or other
proceeding shall be deemed not to have occurred, and the
applicant may answer accordingly any questions relating to its
occurrence.
(5) The provisions of subsection (1)(a) of this section apply
to a conviction of:
(a) A Class B felony, except for a violation of ORS 166.429 or
any crime classified as a person felony as that term is defined
in the rules of the Oregon Criminal Justice Commission.
(b) A Class C felony, except for criminal mistreatment in the
first degree under ORS 163.205 when it would constitute child
abuse as defined in ORS 419B.005 or any sex crime.
(c) The crime of possession of the narcotic drug marijuana when
that crime was punishable as a felony only.
(d) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for:
(A) Any sex crime; or
(B) The following crimes when they would constitute child abuse
as defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS
163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
(e) A misdemeanor, including a violation of a municipal
ordinance, for which a jail sentence may be imposed, except for
endangering the welfare of a minor under ORS 163.575 (1)(a) when
it would constitute child abuse as defined in ORS 419B.005 or any
sex crime.
(f) A violation, whether under state law or local ordinance.
(g) An offense committed before January 1, 1972, that if
committed after that date would be:
(A) A Class C felony, except for any sex crime or for the
following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS
163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
(B) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for any sex crime or for the
following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS
163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
(C) A misdemeanor, except for endangering the welfare of a
minor under ORS 163.575 (1)(a) when it would constitute child
abuse as defined in ORS 419B.005 or any sex crime.
(D) A violation.
(6) Notwithstanding subsection (5) of this section, the
provisions of subsection (1) of this section do not apply to:
(a) A conviction for a state or municipal traffic offense.
(b) A person convicted, within the 10-year period immediately
preceding the filing of the motion pursuant to subsection (1) of
this section, of any other offense, excluding motor vehicle
violations, whether or not the other conviction is for conduct
associated with the same criminal episode that caused the arrest
or conviction that is sought to be set aside. Notwithstanding
subsection (1) of this section, a conviction that has been set
aside under this section shall be considered for the purpose of
determining whether this paragraph is applicable.
(c) A person who at the time the motion authorized by
subsection (1) of this section is pending before the court is
under charge of commission of any crime.
{ + (7) Notwithstanding subsection (5) of this section, a
person may apply for an order setting aside a conviction under
subsection (1)(a) of this section if:
(a)(A) The person has been convicted of rape in the third
degree as defined in ORS 163.355, sodomy in the third degree as
defined in ORS 163.385, sexual abuse in the third degree as
defined in ORS 163.415, contributing to the sexual delinquency of
a minor as defined in ORS 163.435, sexual misconduct as defined
in ORS 163.445, or an attempt to commit any of those offenses; or
(B) The person has been found guilty except for insanity of the
offense, or the person has been found to be within the
jurisdiction of the juvenile court for having committed an act
that if committed by an adult would constitute the offense;
(b) The person was less than five years older than the victim
at the time of the offense;
(c) The victim's lack of consent was due solely to incapacity
to consent by reason of being less than a specified age;
(d) The victim was at least 14 years of age at the time of the
offense or act; and
(e) At the time of the offense or act, the person had no prior
conviction for an offense listed in ORS 181.594 (5) or
adjudication for an act that if committed by an adult would
constitute an offense listed in ORS 181.594 (5), or no prior
conviction or adjudication for conduct in another jurisdiction
that if committed in this state by an adult would constitute an
offense listed in ORS 181.594 (5). + }
{ - (7) - } { + (8) + } Notwithstanding subsection (5) of
this section, the provisions of subsection (1)(a) of this section
do not apply to:
(a) Criminal mistreatment in the second degree under ORS
163.200 if the victim at the time of the crime was 65 years of
age or older; and
(b) Criminal mistreatment in the first degree under ORS 163.205
if the victim at the time of the crime was 65 years of age or
older.
{ - (8) - } { + (9) + } Notwithstanding subsection (5) of
this section, the provisions of subsection (1)(a) of this section
do not apply to criminally negligent homicide under ORS 163.145,
when that offense was punishable as a Class C felony.
{ - (9) - } { + (10) + } Notwithstanding subsection (5) of
this section, the provisions of subsection (1)(a) of this section
apply to a conviction for a Class B felony described in
subsection (5)(a) of this section only if:
(a) Twenty years or more have elapsed from the date of the
conviction sought to be set aside or of the release of the person
from imprisonment for the conviction sought to be set aside,
whichever is later; and
(b) The person has not been convicted of or arrested for any
other offense, excluding motor vehicle violations, after the date
the person was convicted of the offense sought to be set aside.
Notwithstanding subsection (1) of this section, a conviction or
arrest that has been set aside under this section shall be
considered for the purpose of determining whether this paragraph
is applicable.
{ - (10) - } { + (11) + } The provisions of subsection
(1)(b) of this section do not apply to:
(a) A person arrested within the three-year period immediately
preceding the filing of the motion for any offense, excluding
motor vehicle violations, and excluding arrests for conduct
associated with the same criminal episode that caused the arrest
that is sought to be set aside. An arrest that has been set aside
under this section may not be considered for the purpose of
determining whether this paragraph is applicable.
(b) An arrest for driving while under the influence of
intoxicants if the charge is dismissed as a result of the
person's successful completion of a diversion agreement described
in ORS 813.200.
{ - (11) - } { + (12) + } The provisions of subsection (1)
of this section apply to convictions and arrests that occurred
before, as well as those that occurred after, September 9, 1971.
There is no time limit for making an application.
{ - (12) - } { + (13) + } For purposes of any civil action
in which truth is an element of a claim for relief or affirmative
defense, the provisions of subsection (3) of this section
providing that the conviction, arrest or other proceeding be
deemed not to have occurred do not apply and a party may apply to
the court for an order requiring disclosure of the official
records in the case as may be necessary in the interest of
justice.
{ - (13) - } { + (14) + } Upon motion of any prosecutor or
defendant in a case involving records sealed under this section,
supported by affidavit showing good cause, the court with
jurisdiction may order the reopening and disclosure of any
records sealed under this section for the limited purpose of
assisting the investigation of the movant. However, such an order
has no other effect on the orders setting aside the conviction or
the arrest record.
{ - (14) - } { + (15) + } Unless the court makes written
findings by clear and convincing evidence that granting the
motion would not be in the best interests of justice, the court
shall grant the motion and enter an order as provided in
subsection (3) of this section if the defendant has been
convicted of one of the following crimes and is otherwise
eligible for relief under this section:
(a) Abandonment of a child, ORS 163.535.
(b) Attempted assault in the second degree, ORS 163.175.
(c) Assault in the third degree, ORS 163.165.
(d) Coercion, ORS 163.275.
(e) Criminal mistreatment in the first degree, ORS 163.205.
(f) Attempted escape in the first degree, ORS 162.165.
(g) Incest, ORS 163.525, if the victim was at least 18 years of
age.
(h) Intimidation in the first degree, ORS 166.165.
(i) Attempted kidnapping in the second degree, ORS 163.225.
(j) Attempted robbery in the second degree, ORS 164.405.
(k) Robbery in the third degree, ORS 164.395.
(L) Supplying contraband, ORS 162.185.
(m) Unlawful use of a weapon, ORS 166.220.
{ - (15) - } { + (16) + } As used in this section, 'sex
crime' has the meaning given that term in ORS 181.594.
SECTION 2. ORS 419A.260 is amended to read:
419A.260. (1) As used in this section and ORS 419A.262:
(a) 'Contact' means any instance in which a person's act or
behavior, or alleged act or behavior, which could result in a
juvenile court's assumption of jurisdiction under ORS 419B.100
(1)(a) to (c) and (f) or 419C.005 comes to the attention of an
agency specified in paragraph (d) of this subsection.
(b) 'Expunction' means:
(A) The removal and destruction or sealing of a judgment or
order related to a contact and all records and references; and
(B) Where a record is kept by the Department of Human Services
or the Oregon Youth Authority, either the sealing of such record
by the department or the Oregon Youth Authority or, in a
multiperson file, the affixing to the front of the file, by the
department or the youth authority, a stamp or statement
identifying the name of the individual, the date of expunction
and instruction that no further reference shall be made to the
material that is subject to the expunction order except upon an
order of a court of competent jurisdiction.
(c) 'Person' includes a person under 18 years of age.
(d) 'Record' includes a fingerprint or photograph file, report,
exhibit or other material which contains information relating to
a person's contact with any law enforcement agency or juvenile
court or juvenile department and is kept manually, through the
use of electronic data processing equipment, or by any other
means by a law enforcement or public investigative agency, a
juvenile court or juvenile department or an agency of the State
of Oregon. 'Record' does not include:
(A) A transcript of a student's Youth Corrections Education
Program academic record;
(B) Material on file with a public agency which is necessary
for obtaining federal financial participation regarding financial
assistance or services on behalf of a person who has had a
contact;
(C) Records kept or disseminated by the Department of
Transportation, State Marine Board and State Fish and Wildlife
Commission pursuant to juvenile or adult order or recommendation;
(D) Police and court records related to an order of waiver
where the matter is still pending in the adult court or on appeal
therefrom, or to any disposition as an adult pursuant to such
order;
(E) Records related to a support obligation;
(F) Medical records;
(G) Records of a proposed or adjudicated termination of
parental rights and adoptions;
(H) Any law enforcement record of a person who currently does
not qualify for expunction or of current investigations or cases
waived to the adult court;
(I) Records and case reports of the Oregon Supreme Court and
the Oregon Court of Appeals;
(J) Any records in cases under ORS 419C.005 in which a juvenile
court found a person to be within the jurisdiction of the court
based upon the person's commission of an act which if done by an
adult would constitute one of the following offenses:
(i) Aggravated murder under ORS 163.095;
(ii) Murder under ORS 163.115;
(iii) Attempt, solicitation or conspiracy to commit murder or
aggravated murder;
(iv) Manslaughter in the first degree under ORS 163.118;
(v) Manslaughter in the second degree under ORS 163.125;
(vi) Criminally negligent homicide under ORS 163.145;
(vii) Assault in the first degree under ORS 163.185;
(viii) Criminal mistreatment in the first degree under ORS
163.205;
(ix) Kidnapping in the first degree under ORS 163.235;
(x) Rape in the third degree under ORS 163.355 { + , unless the
person meets the eligibility requirements described in ORS
137.225 (7) for applying by motion to set aside a conviction + };
(xi) Rape in the second degree under ORS 163.365;
(xii) Rape in the first degree under ORS 163.375;
(xiii) Sodomy in the third degree under ORS 163.385 { + ,
unless the person meets the eligibility requirements under ORS
137.225 (7) for applying by motion to set aside a conviction + };
(xiv) Sodomy in the second degree under ORS 163.395;
(xv) Sodomy in the first degree under ORS 163.405;
(xvi) Unlawful sexual penetration in the second degree under
ORS 163.408;
(xvii) Unlawful sexual penetration in the first degree under
ORS 163.411;
(xviii) Sexual abuse in the third degree under ORS
163.415 { + , unless the person meets the eligibility
requirements under ORS 137.225 (7) for applying by motion to set
aside a conviction + };
(xix) Sexual abuse in the second degree under ORS 163.425;
(xx) Sexual abuse in the first degree under ORS 163.427;
(xxi) Promoting prostitution under ORS 167.012;
(xxii) Compelling prostitution under ORS 167.017;
(xxiii) Aggravated driving while suspended or revoked under ORS
163.196;
(xxiv) Aggravated vehicular homicide under ORS 163.149; or
(xxv) An attempt to commit a crime listed in this subparagraph
other than manslaughter in the second degree and criminally
negligent homicide;
(K) Blood samples, buccal samples and other physical evidence
and identification information obtained, stored or maintained by
the Department of State Police under authority of ORS 137.076,
181.085 or 419C.473; or
(L) Records maintained in the Law Enforcement Data System under
ORS 181.592 { + , provided that the record is the result of a
finding of juvenile court jurisdiction for conduct described in
subparagraph (J) of this paragraph + }.
(e) 'Termination' means:
(A) For a person who is the subject of a record kept by a
juvenile court or juvenile department, the final disposition of a
case by informal means, by a decision not to place the person on
probation or make the person a ward of the court after the person
has been found to be within the court's jurisdiction, or by a
discontinuance of probation or of the court's wardship.
(B) For a person who is the subject of a record kept by a law
enforcement or public investigative agency, a juvenile court or
juvenile department or an agency of the State of Oregon, the
final disposition of the person's most recent contact with a law
enforcement agency.
(2) The juvenile court or juvenile department shall make
reasonable effort to provide written notice to a child who is
within the court's jurisdiction under ORS 419B.100 (1)(a) to (c)
and (f) or to a youth who is within the court's jurisdiction
under ORS 419C.005, and to the child's or youth's parent, of the
procedures for expunction of a record, the right to counsel under
this chapter, the legal effect of an expunction order and the
procedures for seeking relief from the duty to report as a sex
offender provided under ORS 181.823, at the following times:
(a) At any dispositional hearing or at the time of entering
into a formal accountability agreement;
(b) At the time of termination;
(c) Upon notice to the subject of an expunction pending
pursuant to application of a juvenile department or motion on a
juvenile court; and
(d) At the time of notice of execution of an expunction order.
SECTION 3. ORS 181.592 is amended to read:
181.592. (1) The Department of State Police shall enter into
the Law Enforcement Data System the sex offender information
obtained from the sex offender registration forms submitted under
ORS 181.595, 181.596, 181.597 and 181.609. The department shall
remove from the Law Enforcement Data System the sex offender
information obtained from the sex offender registration form
submitted under ORS 181.595, 181.596, 181.597 or 181.609 if the
conviction or adjudication that gave rise to the registration
obligation is reversed { + , + } { - or - } vacated { + , set
aside or expunged + } or if the registrant is pardoned.
(2)(a) When a person is under supervision for the first time as
a result of a conviction for an offense requiring reporting as a
sex offender, the Department of State Police, a city police
department or a county sheriff's office shall release, upon
request, only the following information about the sex offender:
(A) The sex offender's name and date of birth;
(B) A physical description of the sex offender and a
photograph, if applicable;
(C) The name and zip code of the city where the sex offender
resides;
(D) The name and telephone number of a contact person at the
agency that is supervising the sex offender; and
(E) The name of institutions of higher education that the sex
offender attends or at which the sex offender works or carries on
a vocation.
(b) Notwithstanding paragraph (a) of this subsection, if the
sex offender is under the supervision of the Oregon Youth
Authority or a county juvenile department, the Department of
State Police, city police department or county sheriff's office
shall release only:
(A) The sex offender's name and year of birth;
(B) The name and zip code of the city where the sex offender
resides;
(C) The name and telephone number of a contact person at the
agency that is supervising the sex offender; and
(D) The name of institutions of higher education that the sex
offender attends or at which the sex offender works or carries on
a vocation.
(c) An agency that supervises a sex offender shall release,
upon request, any information that may be necessary to protect
the public concerning the sex offender.
(3) Except as otherwise limited by subsection (2)(a) and (b) of
this section regarding persons who are under supervision for the
first time as sex offenders, the Department of State Police, a
city police department or a county sheriff's office shall
release, upon request, any information that may be necessary to
protect the public concerning sex offenders who reside in a
specific area or concerning a specific sex offender. However, the
entity releasing the information may not release the identity of
a victim of a sex crime.
(4)(a) The Department of State Police may make the information
described in subsections (2) and (3) of this section available to
the public, without the need for a request, by electronic or
other means. The Department of State Police shall make
information about a person who is under supervision for the first
time as a result of a conviction for an offense that requires
reporting as a sex offender accessible only by the use of the sex
offender's name. For all other sex offenders, the Department of
State Police may make the information accessible in any manner
the department chooses.
(b) Notwithstanding paragraph (a) of this subsection, the
Department of State Police may not use the Internet to make
information available to the public except as required by
paragraph (c) of this subsection.
(c) Notwithstanding subsections (2) and (3) of this section,
the Department of State Police shall use the Internet to make the
information described in paragraph (d) of this subsection
available to the public if the information is about a person:
(A) Determined to be a predatory sex offender, as provided in
ORS 181.585, who has also been determined, pursuant to rules of
the agency making the predatory sex offender determination, to
present the highest risk of reoffending and to require the widest
range of notification; or
(B) Found to be a sexually violent dangerous offender under ORS
144.635.
(d) The information required to be made available under
paragraph (c) of this subsection is:
(A) The person's name and address;
(B) A physical description of the person including, but not
limited to, the person's age, height, weight and eye and hair
color;
(C) The type of vehicle that the person is known to drive;
(D) Any conditions or restrictions upon the person's probation,
parole, post-prison supervision or conditional release;
(E) A description of the person's primary and secondary
targets;
(F) A description of the person's method of offense;
(G) A current photograph of the person;
(H) If the person is under supervision, the name or telephone
number of the person's parole and probation officer; and
(I) If the person is not under supervision, contact information
for the Department of State Police.
(5) The Law Enforcement Data System may send sex offender
information to the National Crime Information Center as part of
the national sex offender registry in accordance with appropriate
state and federal procedures.
(6) As used in this section:
(a) 'Attends,' 'institution of higher education,' 'sex crime,'
'works' and 'carries on a vocation' have the meanings given those
terms in ORS 181.594.
(b) 'Sex offender' means a person who is required to report
under ORS 181.595, 181.596, 181.597 or 181.609.
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