How Soon Should I Petition to Expunge or Set Aside?
They say a bird in the hand is worth two in the bush, and this is never truer than when taking steps to have your rights restored. Pursuing a felony expungement should be undertaken as soon as possible because laws and circumstances can change. Simply put, we should act quickly when working toward expungement of an arrest or a conviction because none of us really know what may go wrong if we delay.
Limit the Reach of Your Conviction
One of the reasons for conviction expungement is to minimize the number of people who can access the information for purposes of employment. It is important to remember that setting aside a conviction does not rewrite history. The information can still exist in some databases. Therefore, once eligible, the sooner you can clear up your criminal record through legal expungement, the less likely that the conviction will one day come up on an employer’s computer screen.
Clean up Your Record in Case You Become Ineligible
All criminal defense and expungement attorneys have stories of clients who fared poorly in court because of a previous conviction that hadn’t been cleared up. If a person should be arraigned on new criminal charges before previous charges have been expunged, those former convictions are no longer eligible for expungement and can now be used against a defendant in trial and at sentencing by establishing a pattern of criminal behavior. No one intends to have new charges brought against them, but as anyone who has been through the criminal justice system can attest, innocent people are accused and convicted of crimes more often than people think.
If a conviction is eligible for an expungement or a set aside, changes in certain laws or regulations can nullify that eligibility. There are numerous examples of people who would once have been qualified for rights restoration appeals, but found themselves unable to clean up criminal records due to a change in relevant laws. As recently as 2018, changes in a reduction statute rendered people who have actually been sent to prison ineligible for rights restoration in the state of Oregon.
When laws change, it can affect rights restoration opportunities as well. Set aside laws can change to exclude people who once may have been eligible and the fact that the crime may have been eligible at the time of conviction is irrelevant. The criminal defense attorneys at Lohrke Law urge people to pursue conviction expungement or set aside as soon as they are eligible. If you have any questions, call Lohrke Law for a phone consultation with an expungement expert who will determine eligibility and pricing.
What is the Difference Between the Terms "Expungement" and "Set Aside"?
The terms expungement and set aside in relation to Oregon rights restoration law can be confusing because they are often used interchangeably. Expungement, or expunction as it is sometimes referred to, is a commonly used term. However, in the state of Oregon, the process of removing an adult conviction from one’s permanent record is called “setting it aside.”
Set Aside vs. Expungement in the Courts
When a person is in the process of doing this, the paperwork filed with the court is a Motion to Set Aside. When a petition is filed to have a juvenile adjudication removed from a record, this is known as an expungement and the necessary paperwork to be filed is called a Motion to Expunge.
What Does Expungement or Set Aside Do?
Expungement can be a misleading term because an order to set aside a conviction or arrest removes all traces of an event. In very specific circumstances, a judge can unseal a conviction that has been set aside. What expungement or setting aside does, is limit the purposes for which official records can be used to examine the past event. It allows a person to legally deny, even under oath, having been arrested or convicted of the offense that has been set aside. Conversely, a juvenile adjudication that is expunged can never be unsealed.
How Much Does it Cost to Set Aside or Expunge a Conviction in Oregon?
As of January 1, 2022, state courts no longer require a court filing fee for motions to set aside. This is a savings of $281 per case. The Oregon State Police, however, charge a background check fee that cannot be more than the cost of performing the background check. The fee is expected to be less than $80. Additional costs include about $50 in fingerprint cards and attorney fees.
Attorney Fees Should Include Background Checks
An experienced expungement attorney will start and finish a case by ordering an FBI or OSP background check. The information contained in that report is invaluable for ensuring the expungement order removes all of the records it should. Ordering another background check at the end helps ensure there are no loose ends.
Background checks are included in the fees at Lohrke Law. We use flat fees that are usually quoted during the initial phone consultation. Clients will always be informed of the total cost of representation.
Other Questions About Setting Aside or Expungement
If My Motion is Denied, Can I Apply Again?
As per the Oregon Court of Appeals, there is no limit whatsoever on the number of expungements a person may apply for, and no limit to the number of times a person can request the same expungement. Each time a request for expungement or a motion to set aside an arrest or conviction is submitted to the court, the presiding judge must consider “the behavior and circumstances since commission of the crime.” Each expungement motion requires a new look at the person.
Multiple Applications for Expungement
“Second or subsequent motions to set aside conviction are not barred on claim preclusion grounds because [the law] requires the judge to consider a new aggregate of facts every time the defendant moves to set aside a conviction. State v. Stanford, 111 Or App 509, 828 P2d 559 (1992).
How Many Convictions Can I Set Aside or Expunge?
In Oregon, there is no limit on the number of set asides you can do, so long as each case is eligible. We have set aside a dozen or more convictions for people. Criminal charges and convictions can mount quickly once a person is in the system and known to law enforcement.
Can the State Appeal My Successful Expungement or Set Aside?
There are instances of successful set asides being overturned by the Court of Appeals. However, it is less common than it once appears to have been. The set aside statute, ORS 137.225 is one of the most convoluted and hard to interpret laws in Oregon. Its language understandably took some fine-tuning in the courts. Today, we have a pretty good idea what is eligible and what is not, though questions do still arise.
We regularly have to help district attorneys understand the rights restoration laws and show them why our clients qualify under the law. For example, we have won arguments that felony reduction is permissible, even years after the conviction, and that non-traffic convictions can be expunged out of traffic cases.
The best way to avoid a surprise appeal of your case is to hire an experienced rights restoration and expungement attorney.