Lohrke Law

Can I Set Aside or Expunge a Conviction if my Probation was Revoked?

Revocation of probation does not prevent expungement or set aside, but it is a factor the judge can consider. When a criminal defendant is sentenced to probation, he is ordered to comply with certain requirements of probation. If he does not comply with those terms, the probation can be revoked and incarceration imposed. Despite the fact that the defendant did not do well on probation, that fact alone does not prevent setting aside the conviction.

When deciding whether to grant a motion to set aside, the judge considers, “behavior and circumstances since commission of the crime.” How a person did on probation is part of that consideration, but the Oregon Supreme Court has made clear the law strongly favors granting the motion to set aside if there are no new convictions in the years from the conviction until expungement eligibility.

As the court stated,

“[The] statutory history of [the law] leaves no doubt that the legislature chose a policy favoring setting aside con­vic­­tions rather than leaving decision to judicial discre­tion. State v. Langan, 301 Or 1, 718 P2d 719 (1986)