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Category: Expungment

Clarification of The Rules for Expungement – Contempt is Not an “Offense”

In Oregon, certain criminal convictions can be expunged (set aside and sealed) after a period of time.  The rule is that a person must be free from criminal convictions for ten years preceding the filing of the motion, not counting the offense one is trying to remove from a criminal record.  This is an important process.  Felony and misdemeanor convictions can have a devastating impact on finding employment and housing.  Being able to clear one’s record after a period of law abiding behavior is important.

As a Portland expungement lawyer, I have encountered problems for clients that have been found in contempt of court.  Some counties treat a contempt conviction as a disqualifying crime for expungement purposes and some do not.  The mixed results between counties has been frustrating for my clients and everyone else trying to navigate the expungement process.  This process is expensive and the costs (for filing fees and a background check fee) amount to $320.00.  This is not an amount of money most people want to spend on an uncertain result.

For many years, I have argued that contempt itself is not an “offense” because it is neither a felony nor a misdemeanor.  The results have been mixed.  Recently, I had a client who wanted to appeal an adverse decision on this “contempt as an offense” issue.

On October 9, 2013, the Court of Appeals issued its decision in State v. Coughlin.  In that case, a client had been found in contempt for violation of a restraining order within the ten years of applying for an expungement.  The Trial Court determined that contempt was a disqualifying offense under the expungement statute.  We appealed.  The Court of Appeals agreed that contempt is not an “offense” or a “crime.”  The Court noted that in virtually all of its previous decisions characterizing the nature of a contempt conviction it had found that contempt was not a crime.  The Court of Appeals held that a contempt conviction does not, by itself, bar a person from an expungement.  Accordingly, the Court of Appeals reversed and remanded the case to the Trial Court for reconsideration.

After 35 years of being an Oregon expungement lawyer, it is good to see that the issue has been settled.  Now people can file for expungement with a degree of certainty that they will not be denied on the basis of a contempt conviction.  The patchwork of counties with different views of the issue are now settled.

Expungement in Oregon – Oregon Legislature Now Allows Expungement of Certain Sex Crimes Convictions

Oregon Law has allowed for people to “expunge,” or seal, the record of their arrest and conviction for certain crimes. Generally speaking, misdemeanors and Class C Felonies can be expunged from a person’s record after a period of time, either three or ten years, depending on the circumstances. Some offenses, such as traffic crimes and crimes involving child abuse can never be removed.

Sex crimes have long been excluded from expungeable offenses. However, in this legislative session, the Legislature approved House Bill 3327, which allows for some sex offenses to be expunged.

House Bill 3327 allows for two classes of sex offenses to be expunged.

The new law allows misdemeanor sex offenses where the sexual contact was consensual and where there was less than five years difference in age to be expunged. However, the offender must have received relief from sex offender registration and have no other convictions for non-expungeable sex crimes. This new provision also applies to the Class C felony crimes of Rape in the Third Degree and Sodomy in the Third Degree.

The legislature also chose to allow certain people to expunge Class C felony sex crimes under certain conditions. First, the Class C felony sex crime must have been committed when a person was under 16 years of age. Second, the offense must have involved a person less than three years younger and the victim must have been over the age of 12. Third, the act must have been consensual. Fourth, the person must not have any convictions for non-expungeable sex crimes.

As an Oregon expungement lawyer, Mr. O’Rourke sees this is a positive step forward in recognizing the importance of allowing people to remove crimes from their record if the offenses are aberrations from a normally law abiding life or when the offense or offenses are long in the past. This is particularly true of sex offense convictions from a person’s youth, which is what the new law is tailored to address. A sex crime conviction can be very difficult to explain to a prospective employer, even if there are significant mitigating circumstances.

There are other anomalies in the expungement statute that await legislative action. For instance, a person convicted of Felony Driving While Suspended cannot ever remove that felony from their record, effectively branding them as felons forever, when people with far more serious convictions can erase their records. James F. O’Rourke, Jr. and Associates hopes that the legislature will continue to expand the expungement statute to allow deserving people relief from the stigma of a criminal conviction.