Oregon’s New Expungement Law, Two Years In

Oregon Senate Bill 397 has helped thousands of people obtain the benefits of expungement, but some technical problems still need fixed.

 Oregon’s Expungement Evolution: What you Need to Know

In January 2022, Oregon’s expungement law, ORS 137.225, underwent significant changes with the enactment of Senate Bill 397. This legislation, passed with strong bipartisan support, aimed to enhance accessibility by eliminating filing fees and reducing eligibility waiting times. While the new law has largely succeeded in making expungement more attainable, challenges such as extended processing times of nearly two years in some counties and inconsistent outcomes persist.

In this exploration of Oregon’s expungement landscape, we will examine the impact of Senate Bill 397, its implications for accessibility and justice, and the continuing hurdles within the state’s expungement process.

Expungement Eligibility Timelines

Before 2022, individuals in Oregon faced a lengthy waiting period, often called the ‘good time’ period, of ten years with no convictions before becoming eligible for expungement. This period was calculated using a complex formula and proved confusing for many applicants and lawyers. In simple terms, having two convictions led to a decade-long waiting period.

With the implementation of Senate Bill 397, expungement timelines have been significantly reduced for most people. For example A-level Misdemeanors and C-level Felonies, the most common cases for expungement, now require just a three-year or five-year ‘good time’ waiting period, respectively. For instance, someone with two theft in the first-degree convictions (a C Felony) now needs to wait five years to expunge both charges, down from the previous ten-year requirement.

Arguably the most important change brought about by Senate Bill 397 is the introduction of a seven-year ‘good time’ waiting period for non-person Class B Felonies. Prior to 2022, individuals with non-person B Felony convictions faced a daunting twenty-year wait, and even then, only if they managed to avoid subsequent arrests or convictions.

This stringent requirement left few eligible. The result of the new law is that many people who have long since left behind addiction and drug use are eligible to move forward as non-felons.

Filing Fees Eliminated in Circuit Courts

Before 2022, expungement in Oregon came with a significant financial burden – a $281 filing fee for each conviction case. The filing fees alone could run into thousands of dollars, making expungement inaccessible for many who could not afford it.

 The elimination of filing fees has been a great success but also led to many more expungement cases being filed, which has caused its own problems with accuracy and processing time. It’s worth noting that while Senate Bill 397 introduced numerous changes for municipal court expungements, municipal courts still retain the authority to set their own fees.

To bridge the gap, several free expungement clinics have emerged statewide, aiding individuals in filing their own cases. With filing fees eliminated in most courts, many people with limited incomes have gained access to the benefits of expungement.

Timelines for Expungement Depend on the County

One unforeseen consequence of the 2022 changes to Oregon expungement law was an overwhelming number of cases being filed in some courts. Multnomah County alone had tens of thousands of expungement filings in the first few months of 2022. Unfortunately, the system was not ready for the surge, and many of those cases are still making their way through the system. Presently, there are Multnomah County expungements filed seventeen months ago that have still not been completed.

Multnomah County is an outlier. Most courts are taking five to seven months to complete expungements. Washington County has been on the slower end as well, with cases taking most of a year to wind through the system.

Another part of the problem has been people filing their own expungements and doing it poorly- either by providing confusing information that takes time to sort through or by not sending fingerprints and the proper paperwork to the Oregon State Police at the time of filing. When the case information is not clear, or it was not served and filed correctly, it causes extra paperwork to be created, letters to be sent, and needless hearings to occur. All of this helps to slow the system down overall.

ORS 137.225 offers no remedy in this situation. While it does include a 120-day timeline, it merely sets a limit on how long a prosecuting attorney’s office has to file an objection to an expungement. This timeline does not obligate the court to expedite the processing of the expungement itself. 

The hope is that Multnomah and Washington Counties will reduce their processing times. Likely, the number of new expungement case filings will go down with time, and their systems will become more efficient.

Senate Bill 397 Overlooked Dismissed Cases

In the American legal system, individuals charged with a crime are innocent unless proven guilty. Sometimes, due to insufficient evidence, charges are dismissed or not filed in court—a fairly common occurrence. 

Previously, ORS 137.225 allowed for the immediate expungement of dismissed charges and the expungement of no-filed charges after a year. These timelines were meant to continue with Senate Bill 397; however, a legal error occurred during the drafting process. Section (9) of ORS 137.225 inadvertently referred back to the entirety of section (1) instead of just section (1)(a).

The result is that a charge like theft in the first degree, dismissed due to lack of evidence, cannot be expunged for five years—the same time required for expunging a conviction of theft in the first degree. This is a clear oversight that needs correction in a future update to the law. 

The Expungement is Only as Good as the Expungement Order

The expungement is not complete when a judge signs the expungement order. At that point, the order is sent to the agencies that hold records about the case, and the agencies are required to comply with the order and remove or sequester information from their records. 

Agencies are only authorized to remove the information ordered by the judge, so if the expungement order does not include certain information about the case, oftentimes it is not removed from a person’s record. The result can be frustrating, leaving certain case information on a person’s record that makes clear the case once existed.

Obtaining complete and fully accurate expungement orders in many cases requires an extensive understanding of the criminal justice information system. It can take hours of research to determine what criminal history events go with which cases, and even then questions can remain. The disappointing truth is that many people who believe their cases are expunged will still see a criminal history if they run an updated background check.

It is important to order a new FBI or Oregon State Police background check after expungement to make sure that what a person expected to be removed from their record was, in fact, removed.  Senate Bill 397 sought to clarify and simplify the expungement process, but criminal records are complicated and the processing agencies need an update to the law that allows a case’s trailing information to be removed, even if each piece of information was not included in the signed expungement order.

Some Counties Still Grapple with Understanding the New Law

 Despite the passage of Senate Bill 397 two years ago, certain counties continue to face challenges in correctly implementing the law. This issue is particularly present for individuals who file without legal representation. In some smaller counties with less robust expungement processes, cases have been wrongly denied. Additionally, individuals who attempt self-filing may use incorrect forms, leading to the failure to expunge eligible cases and unintentional applications for cases that are not eligible.

The intricacies of partial expungements, where only a portion of a case is set aside, often lead to confusion for prosecuting attorney offices and courts. Without legal representation to advocate for the accurate interpretation of the law or to file the correct forms, an eligible expungement can unfortunately be denied.

Drug Laws Have Changed, but the Expungement Timelines have Not

 When marijuana was legalized in Oregon, a new law, ORS 137.226 soon followed. That law essentially said that for purposes of expungement, a marijuana conviction should be considered at the level it would be as of 2017, rather than when it was prosecuted. 

For example, growing marijuana was once a Class A felony. An A-level felony can never be expunged. However, manufacture of marijuana is at most a Class-C felony in most cases today and can be expunged after five years or less. Many people who were told they could never expunge their cases are now eligible.

 When Oregon passed Measure 110, the penalties for drug possession were greatly reduced, but the expungement timelines were not updated. The result is that some people with B and C-level felony possession convictions are not eligible for expungement yet, even though the same action is now a violation rather than a crime.

 Early expungement of felony-level drug charges requires a reduction from felony to misdemeanor and then a subsequent expungement. This is a complicated legal process that requires multiple court filings and potentially multiple hearings as well.

Navigating Oregon’s Expungement Journey

Reflecting on the past two years of Oregon’s updated expungement law, progress and challenges stand out. Senate Bill 397 passed with bipartisan support and brought significant improvements. Eliminating filing fees, reducing waiting periods, and expanding opportunities for certain convictions greatly increased accessibility.

Yet, complexities persist. Processing time disparities across counties, drafting mistakes, and misunderstandings and oversights regarding application of the law are among issues that need attention. Drug law changes outpaced expungement timelines, leaving individuals seeking relief from prior drug-related convictions facing legal hurdles.

The expungement process’s intricacy demands a thorough understanding of the criminal justice system. Post-expungement background checks become crucial to ensure data removal.

Senate Bill 397 was a significant step, but the journey isn’t over. Oregon’s evolving expungement laws can be the standard around the nation with continued efforts.