Circumstances and Behavior in An Oregon Criminal Set-Aside
Criminal Set-Aside Services in Oregon
Oregon’s criminal set-aside statute (ORS 137.225) was recently amended in 2022 to further favor granting expungements for eligible applicants. Should an individual meet the basic eligibility criteria (e.g. enough time has passed and they “fully complied with and performed the sentence” per ORS 137.225(1)(a)),
The court “shall grant” the motion unless it finds by clear and convincing evidence that the applicant’s circumstances and behavior since the conviction create a risk to public safety. In making that public-safety determination, the court may only consider the person’s criminal behavior or certain regulatory violations (those enforced by civil penalty/administrative sanction) and only if related to the character of the conviction.
Considerations For Criminal Set-Aside
The court “may not consider” any nonpunitive civil liability, monetary obligations, or motor vehicle violations. These amendments codified the Oregon Supreme Court’s long-standing interpretation from State v. Langan (1986) that expungement denials must be based on unlawful conduct, not merely on moral or civil shortcomings.
Under the current law, the burden is squarely on the state (usually via a prosecutor’s objection)to prove disqualifying post-conviction conduct. If no objection is timely filed, the statute directs that the court must grant the motion without a hearing.
Even if a hearing is held, the applicant has no burden to prove “good” behavior – rather, the court looks for evidence from the state showing the person’s behavior since the conviction makes them a public safety risk. The Court of Appeals has emphasized that a judge cannot deny relief simply because an applicant failed to affirmatively demonstrate rehabilitation or “address” underlying issues; lack of such “evidence does little” to establish risk under the statute.
“Circumstances and Behavior” – Only Legal Violations Qualify
Oregon courts interpret “circumstances and behavior” to mean conduct that is “contrary to public law,” not merely contrary to social expectations.
In State v. Langan, the Supreme Court held that “[d]isqualifying behavior must be some form of legal (not merely social) impropriety”caselaw.findlaw.com. The court explained that a judge is “to examine whether the applicant has behaved in conformity with or contrary to public law.” Thus, purely private or moral misbehavior, or civil issues (like lawsuits or debts), are not grounds to deny a set-aside.
For example, an act that incurs only nonpunitive civil liability (say, breaching a contract or being sued in tort) cannot disqualify an applicant unless it also violates some law or regulation.
This principle has been consistently reaffirmed: “Not once have we concluded that conduct that, in and of itself, does not violate public law allows for the denial of a motion.”caselaw.findlaw.com In short, the courts have no free-floating discretion to deny expungement for behavior that isn’t at least an infraction of lawcaselaw.findlaw.com.
Moreover, even minor legal violations are often excluded by statute from consideration. The 2022 law explicitly bars considering traffic infractions or “motor vehicle violations,” and it forbids considering “monetary obligations” like unpaid court fines, fees, or restitution in the public-safety analysislaw.justia.com. (Failure to pay restitution can affect the threshold eligibility – see below – but it cannot be used to show someone is a danger to public safetylaw.justia.com.) The legislative intent here is clear: only post-conviction misconduct of a criminal or quasi-criminal nature may be weighed against the applicantcaselaw.findlaw.com. As the
Court of Appeals summarized, “behavior means [conformity with] public law and cannot include social conformity”wlo.willamette.edu. Thus, a trial court may deny an otherwise qualified applicant’s motion “only if it determines (1) that the person violated public law after the date of conviction and (2) that the violation warrants denying the request.”wlo.willamette.edu (quoting State v. Larson, 268 Or App 802 (2015), and State v. Langan, 301 Or at 7–10).
What Doesn’t Count as Disqualifying Behavior?
Non-criminal conduct, personal shortcomings, or civil infractions will not justify denial. Oregon appellate cases illustrate this point:
- Unpaid Financial Obligations: In State v. Kindred (2021), the trial court denied expungement because the applicant had outstanding court fines from other cases and had two transit fare violations. The Court of Appeals reversed, holding that failure to pay fines/fees is not “behavior contrary to public law” under Langan and thus cannot be a basis to denycaselaw.findlaw.comcaselaw.findlaw.com. Unpaid criminal debt might reflect negatively on the person, but it is not itself a new crime or legal violation (absent a willful contempt proceeding). Likewise, minor fare evasion violations that were dismissed could not count against the applicant. The appellate court reiterated that outstanding fines = a financial circumstance, not disqualifying “behavior”caselaw.findlaw.com. Kindred underscores that courts cannot treat financial noncompliance or debt as evidence of public safety riskcaselaw.findlaw.com. (Similarly, in State v. Grant (2025), the Court of Appeals noted ORS 137.225(3)(a) “expressly forbids” considering monetary obligations in the risk analysislaw.justia.com.)
- Non-criminal Probation Violations or Noncompliance: If a person has not strictly followed all probation conditions but hasn’t broken any laws, that alone is not disqualifying “behavior.” For example, in State v. Long-Ellis (2024), the defendant had no new offenses after his 2015 harassment conviction but failed to complete a court-ordered treatment program during probationlaw.justia.comlaw.justia.com. The trial court denied his set-aside, reasoning that this failure made him a public safety risk. On appeal, the denial was upheld – but on other grounds. The Court of Appeals pointed out that legislation in 2021 had clarified the eligibility standard: a person must “fully” satisfy all terms of the sentence, not merely avoid formal violationswlo.willamette.edu. Because Long-Ellis did not complete the mandated treatment (a condition of his sentence), he failed that threshold requirement under ORS 137.225(1)(a)wlo.willamette.edu. In other words, he was never eligible for relief in the first place, so the court did not need to reach the (3)(a) risk analysis. Long-Ellis indicates that non-criminal noncompliance (like failing a treatment program) is handled as an eligibility issue, not as “circumstances and behavior” evidence. Had he been eligible, such non-criminal misbehavior on its own would likely not meet the statute’s strict criteria for denying an otherwise-qualified applicant. (Indeed, it’s not a “criminal or regulatory violation” at all, so it would fall outside what ORS 137.225(3)(a) permits the court to considerlaw.justia.com.)
- Purely Personal or Social Misconduct: Oregon courts have rejected the notion that a judge may deny expungement based on subjective judgments about an applicant’s lifestyle, attitude, or other non-illegal “circumstances.” For example, Langan itself reversed a denial that had been based on the applicant continuing a certain card-game business after a police warning. The Supreme Court found that because it wasn’t proven illegal, “a finding that defendant did not do as he was told” (i.e. ignored a warning) “is not sufficient to deny” the motioncaselaw.findlaw.com. This principle forecloses denying relief for things like failing to show remorse, not engaging in community service (beyond what the law requires), or other social nonconformity. As the Court of Appeals observed, Oregon’s policy is to remove “judicial discretion” from this process – two judges should not be free to reach opposite results on identical facts based on subjective viewscaselaw.findlaw.com. There must be objective, unlawful conduct to justify a denial.
What Does Count as Disqualifying Conduct?
The only types of post-conviction conduct that can justify denying a set-aside are those that involve breaking the law (criminally or through punitive regulatory violations) in a way that implicates public safety. In practical terms, courts look for new convictions, pending criminal charges, or comparable misconduct after the conviction in question:
- Subsequent Criminal Offenses: Any new criminal behavior by the applicant is clearly relevant. If the person was convicted of or credibly engaged in another crime after the conviction they seek to set aside, that is “behavior contrary to public law” and may reflect on their charactercaselaw.findlaw.com. (In fact, having a new conviction within the statutory waiting period makes one categorically ineligible under ORS 137.225(7)(b), apart from a single minor violationoregon.public.law.) Even outside the waiting period, a recent or serious subsequent crime will weigh heavily against granting the motion due to public safety risk. However, the statute now requires that even criminal behavior be considered only if it “relate[s] to the character” of the conviction being set asidelaw.justia.com. This suggests a nexus requirement – e.g. if someone seeks to expunge a theft conviction, the court might consider later theft or fraud offenses as relevant to their risk, but perhaps not an unrelated offense like a minor fishing violation. (No published case has squarely decided the scope of “relate to the character” for new crimes, but courts would likely focus on how the later offense reflects on the same propensities or risks as the original conviction.) In any event, any new crime must be proven with evidence at the hearing. Under Langan, each element of an alleged unlawful act must be established by a preponderance of evidence (now an even higher “clear and convincing” standard under the amended law) before it can justify denialcaselaw.findlaw.com. Mere arrests or unproven allegations are not automatically disqualifying – the state would need to present evidence of the misconduct itself if there was no conviction.
- Regulatory or Administrative Violations: The courts recognize that non-criminal violations of law – for example, breaches of regulations punishable by fines or license penalties – can be considered but only if related to the nature of the convictioncaselaw.findlaw.com. Langan gave the example that “[n]oncriminal behavior that violates a regulatory law or rule enforced by a civil penalty may disqualify an applicant if the law relates to the character of the conviction sought to be set aside.”caselaw.findlaw.com. In other words, if the original conviction was, say, an environmental offense, and after that the person committed serious environmental regulatory violations (even if not criminally prosecuted), a court could consider that pattern as relevant to public safety. But generalized regulatory infractions unrelated to the original crime would not meet the statutory test. And again, “motor vehicle violations” are explicitly off-limitslaw.justia.com – so minor traffic tickets, even though they technically break public law, cannot be used to block an expungement.
- Multiple or Serious Violations Indicating Ongoing Risk: Oregon appellate decisions post-amendment also show that even when some post-conviction misconduct exists, courts demand a significant showing of risk to actually deny relief. For instance, in State v. Singleton (2025) (“Singleton II”), the defendant had a domestic violence assault conviction from 2009 and, shortly after that conviction, he committed another assault (strangulation) against the same victim, leading to a probation revocation back in 2010caselaw.findlaw.comcaselaw.findlaw.com. By 2020, he had no further offenses and sought to set aside the 2009 assault conviction. The trial court, even with no prosecutor objection, denied the motion, effectively relying on the decade-old strangulation as evidence of risk. The Court of Appeals reversed and ordered the conviction set aside, holding that a single old offense of that nature, standing alone, was insufficient to meet the clear and convincing standard in 2022’s ORS 137.225(3)(a)caselaw.findlaw.com. The record had “a paucity of evidence” of any current risk – no new crimes in over ten years – and the absence of affirmative proof of rehabilitation did not count against the defendantcaselaw.findlaw.comcaselaw.findlaw.com. The Court underscored that the statutory bar is high: it must be “highly probable” that the person’s post-conviction behavior makes them a public safety threatcaselaw.findlaw.com.
- In Singleton II, “[e]vidence of a defendant’s single probation revocation resulting in a conviction more than 10 years ago” did not clear that barcaselaw.findlaw.com. This suggests that courts will look for either a pattern of unlawful behavior or very recent serious misconduct to justify a denial. Sporadic or very remote offenses are less likely to suffice, especially given legislative trends shortening look-back periods (e.g. the legislature reduced the waiting period after a probation revocation from 10 years to 3 years in the 2021 amendments, signaling a more lenient posture)caselaw.findlaw.comcaselaw.findlaw.com.
In sum, Oregon courts now apply ORS 137.225(3)(a) in a narrow, criteria-driven way. The key question is: Has the applicant engaged in any unlawful behavior since the conviction that makes granting the set-aside contrary to public safety? If not, the motion should be granted. If the state identifies post-conviction incidents, the court will evaluate whether those incidents are legally proven, relevant in nature to the original offense, and serious enough to deem the person a “risk to public safety” by clear and convincing evidencelaw.justia.comcaselaw.findlaw.com.
Non-criminal conduct and general “circumstances” of the applicant’s life cannot by themselves justify a denial. Oregon appellate decisions – from Langan through Kindred and Singleton – make clear that judges may not import their own notions of morality or compliance beyond the law’s requirementscaselaw.findlaw.com. Unless an applicant has violated the law post-conviction in a way that can be shown to significantly implicate public safety, their motion to set aside must be grantedcaselaw.findlaw.comcaselaw.findlaw.com.
Practical Takeaway for Hearings
When arguing a motion to set aside a conviction under the current law, it is effective to emphasize the lack of any disqualifying conduct by the applicant. You can point out, for example, that the applicant has no new criminal convictions or pending charges (and any minor issues like traffic tickets or civil matters are explicitly off-limitslaw.justia.com). Oregon law presumes in favor of relief for those who meet the basic criteria, and the courts require concrete evidence of post-conviction legal violations to overcome that presumptioncaselaw.findlaw.comcaselaw.findlaw.com. If the prosecutor does object, the focus should remain on the statute’s limits: only criminal or similar misconduct “relating to” the original crime can be considered – nothing else. Even then, the state must show that the conduct makes the person a current public safety risk at a high level of proof. As the Court of Appeals noted, a distant or isolated lapse is generally not enoughcaselaw.findlaw.com.
In supporting your argument, you can cite State v. Langan and its progeny for the principle that “disqualifying behavior” means violations of law, not merely failing to meet other obligationscaselaw.findlaw.comcaselaw.findlaw.com. Emphasize that under ORS 137.225(3)(a) as amended, the court “shall” grant the expungement absent clear and convincing evidence of riskcaselaw.findlaw.com. If your client has been law-abiding since the conviction, any theoretical or subjective concerns should carry no weight. And if the state brings up non-criminal issues (like treatment noncompletion, outstanding fees, etc.), you can direct the court to the statutory text forbidding consideration of “monetary obligations” and other non-criminal matterslaw.justia.com, as well as cases like Kindred and Grant where such arguments were rejected.
Overall, the current state of the law is highly favorable to the applicant so long as they have not re-offended or engaged in comparable unlawful conduct. Courts are hewing closely to the statute: post-conviction behavior that isn’t a crime (or similar violation of law) simply “does not provide a basis” to deny the motioncaselaw.findlaw.com. And even if there was some post-conviction offense, the state must demonstrate that it makes it “highly probable” the person poses a public safety risk – a demanding standardcaselaw.findlaw.com. This framework, backed by the recent case law, should greatly assist in arguing for relief at the hearing.
Contact Lohrke Law For All Criminal Set-Aside Needs
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Sources:
- ORS 137.225(3)(a) (2022) (text of “circumstances and behavior” standard)law.justia.com.
- State v. Langan, 301 Or 1, 7–10, 718 P.2d 719 (1986) (seminal case interpreting “circumstances and behavior” to require unlawful conduct, not mere social nonconformity)caselaw.findlaw.comcaselaw.findlaw.com.
- State v. Bomar, 79 Or App 451, 719 P.2d 76 (1986) (court must find post-conviction behavior “contrary to public law” to deny, per Langan)caselaw.findlaw.com.
- State v. Larson, 268 Or App 802, 344 P.3d 59 (2015) (no denial absent post-conviction law violation warranting it)wlo.willamette.edu.
- Patterson v. Foote, 226 Or App 104, 204 P.3d 97 (2009) (if defendant has no disqualifying conduct, court shall grant; no unfettered discretion)caselaw.findlaw.com.
- State v. Kindred, 314 Or App 280, 499 P.3d 835 (2021) (reversing denial based on unpaid fines; nonpayment of financial obligations is not “contrary to public law” under Langan)caselaw.findlaw.comcaselaw.findlaw.com.
- State v. Long-Ellis, 330 Or App 414, 520 P.3d 900 (2024) (affirming denial where defendant failed to complete a probation-required program, on grounds of ineligibility for not fully completing sentence)wlo.willamette.eduwlo.willamette.edu.
- State v. Singleton, 317 Or App 49, 503 P.3d 499 (2022) (“Singleton I”) (trial court must hold a hearing and allow evidence if it intends to deny a set-aside; hints that even an uncontested motion can’t be denied without giving defendant a chance to respond to any public-safety concerns)ojd.contentdm.oclc.orgojd.contentdm.oclc.org.
- State v. Singleton, 324 Or App 163, 523 P.3d 1231 (2023) (on remand, trial court’s renewed denial reversed for lack of evidence under new standard – see Singleton II below).caselaw.findlaw.com
- State v. Singleton, 337 Or App 214, P.3d (2025) (“Singleton II”) (clear and convincing standard applied; no objection and no new offenses in 10+ years meant insufficient evidence of risk; motion ordered granted)caselaw.findlaw.comcaselaw.findlaw.com.
- State v. Grant, 339 Or App 612, 561 P.3d 642 (2025) (affirming denial due to ineligibility – failure to pay restitution means not “fully complied” with sentence; also noting ORS 137.225(3)(a) forbids considering unpaid monetary obligations in a risk analysis)law.justia.com.