Why 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 without notice. Simply put, we should act quickly when working toward arrest or conviction expungement because none of us really know what may go wrong if we delay. Here are just a few of the more common reasons why people say they wish they had pursued expungement sooner.
Limiting 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 a set aside does not rewrite history. A set aside does not rewrite history; it is not forgiveness for the perpetration of a crime. The information still exists on relevant computer databases, and if an employer should find out about a conviction, they can still use it against you, even after it has been set aside. Therefore, the sooner you can clear up your criminal record through legal expungement once eligible, the less likely that 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 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, the changing of 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 to a changing of 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 terms of 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 in order to expunge a conviction or arrest does not rewrite history, deny the occurrence or remove all traces of an event. In very specific circumstances, a judge can even unseal a set aside conviction. What expungement or set 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 or exhumed.
When examined in detail it becomes very clear that while expungement and set aside are similar and are often used interchangeably, they are clearly not the same.
How Much Does it Cost to Set Aside or Expunge a Conviction in Oregon?
Each expungement or set aside motion requires a $281 court filing fee as well as an $80 background check fee for the Oregon State Police. Additional costs include $15 to $20 for a fingerprint card. These prices are current as of July 2020. If filing more than one motion at the same time, only one $80 fee is required.
Lawyer fees are necessary for an attorney to represent you during a petition for a conviction set aside or expungement. Lohrke Law does order a background check of our own to ensure a client is a suitable candidate for the requested expungement, thereby saving time and money.
At Lohrke Law, we keep costs down by setting flat fees that are usually determined during our initial phone consultation. Clients will always be informed of the costs involved in advance of any actions taken by Lohrke Law.
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.” This consideration changes over the course of time, and must receive a new consideration each time an expungement or set aside is requested.
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. However, once ten years have passed there is generally nothing standing in the way of setting aside every old case that is eligible.
During a free phone consultation with an attorney Lohrke Law can help you determine eligibility and the cost to clean up a criminal record.
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 attorney.