Must I Appear Before a Judge to Set Aside a Conviction?
If you or your attorney properly investigated your case, there should be no need to appear for a hearing before a judge. A set aside in Oregon is fairly black and white. You are eligible or you are not. It is a waste of your time and money to apply for a set aside if you are not eligible. The only purpose for a hearing is for a prosecutor or district attorney to explain to the judge why you are not eligible.
We regularly receive phone calls from people who had a hearing set after they attempted to do their own expungements. Without fail, as soon as we looked into their cases, they were not yet eligible for expungement. They are needlessly out more than $350 in fees that could have been saved had they called us first.
If you apply to set aside cases that are eligible, there will generally not be a hearing before a judge. The motion will usually be granted once the prosecutor or district attorney informs the judge they have no opposition to the request.
Can A Judge Deny a Motion to Set Aside or Expunge?
Oregon has a strong legislative and caselaw history that favors granting expungement or set aside motions for eligible convictions. Judicial discretion is limited. Importantly, a judge cannot consider the nature or seriousness of the conviction that is being set aside. Judges determine only whether or not the conviction is eligible to be set aside and whether “the circumstances and behavior of the applicant from the date of conviction…to the date of the hearing on the motion warrant setting aside the conviction.” ORS 137.225(3)
A judge looks at whether the applicant has conformed his behavior to that required by law. If you have been living a conviction-free life for at least 3 to 10 years (depending on your conviction history), the odds are good you can successfully set aside your eligible convictions. At Lohrke Law, our motions to the court include an important write-up about the applicant that highlights how our client has changed his life since the time of conviction.