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Expungements and How They Work

Posted by Andrea Worden | Apr 15, 2021 | 0 Comments

            Expungements are a legal way of erasing your criminal history and records.  Eligibility for an expungement is strict but not impossible. There are also fees that certainly act as a deterrent for a handful of people. There are quite a few benefits as well.

           Expungement is defined in the Oklahoma Statutes as “the sealing of criminal records, as well as any public civil record, involving action brought by and against the State of Oklahoma arising from the same arrest, transaction or occurrence.” [i]

There are different types of expungements.  

Public Record (991c) Expungement

The most common type of expungement and least costly is a deferred sentence dismissal and public record expungement, often called a “991(c)” (referencing the statutory citation). People often call our office thinking they have had a full record expungement when they actually have had this type of partial expungement.

A 991(c) happens when a deferred sentence is completed, all conditions were met and

paid, the court will have the ability to dismiss the verdict or plea of “guilty”/“no contest” and erase the record from the public record. The public record includes www.odcr.com, www.oscn.net and the court clerk's file.  As stated, this is often confused for a full record expungement.  However, it is simply a dismissal and a partial expungement. The crime you were arrested or cited for will still show on your background check.

 

Permanent Record (18/19) Expungement

 

When a permanent expungement of your criminal records occurs, the actions “shall be deemed never to have occurred . . . and that no such record exists with respect to such person.” [ii] An expungement includes the public record, the arresting agency's records, jail records, and most importantly the Oklahoma State Bureau of Investigations' records.  When you being interviewed or something similar by employers, educational institutions, state or local government agencies, official and/or anyone else and they ask about your criminal history or any criminal the law is, “including any reference to or information concerning such sealed information AND may state that such action has never occurred.” [iii]

  • Eligibility

            The eligibility of expungements is complex and can be found In Oklahoma statutes, Title 22 Sections 18 and 19.  The Worden Law Firm will not accept clients who are not eligible.  We have an 100% expungement success rate.  Qualification for a permanent record expungement includes an array of factors, including but not limited to: charges being dismissed, time passage, filing of charges, and if there was a conviction.

  • Generally, can expunge if:
  • There was an acquittal.
  • Conviction was reversed by an Appellate Court with instructions to dismiss.
  • Conviction was reversed by an Appellate Court AND the prosecuting agency subsequently dismissed the charge.
  • DNA evidence was established that proved the factual innocence of the defendant subsequent to the conviction (this includes people who have already been released from prison). * look at the fee section below if you meet this one*
  • A full pardon by the Governor for the crime committed has been given to the defendant
  • There was an arrest but no charges were ever filed, the statutes of limitations have expired OR the prosecuting agency has declined to file charges.
  • The defendant was under eighteen (18) at the time of the offense AND that same person has received a full pardon.
  • Misdemeanors: (Important Note for this section: Notice that if you have EVER been convicted of a felony, you cannot be eligible for expungement.)

  • All charges of one of more misdemeanors were dismissed AND the defendant has never been convicted of a felony, AND has no misdemeanors or felony charges pending against them AND the statute of limitations for refiling the charge(s) has expired OR the prosecuting agency confirms that there will be no refiling. *Category does not apply to dismissal after completion of deferred or delayed sentence.
  • The defendant was charged with a misdemeanor and is was dismissed following the successful completion of a deferred or delayed sentence AND the person has never been convicted of a felony AND no misdemeanor or felony charges are pending against the defendant AND at least one (1) year has passed since the charge was dismissed.
  • The defendant was convicted of a misdemeanor AND the defendant was sentenced to a fine of less than $501.00 without a term of imprisonment or a suspended sentence AND the fine has been paid or satisfied by time served in lieu of fine, AND the person has not been convicted of a felony AND no felony or misdemeanor charges are pending against the defendant.
  • The defendant was convicted of a misdemeanor AND the defendant was sentenced to a term of imprisonment OR a suspended sentence OR a fine greater than $500.00 AND the person has not been convicted of a felony, AND no felony or misdemeanor charges are pending against the defendant AND at least five (5) years have passed since the end of the last misdemeanor sentence.
  • Nonviolent Felonies: (*Important Note for this Section: Under Title 57 Section 571 of the Oklahoma Statutes there is a list considered to be “violent” felonies. They include charges like: Burglary in the first or second degree, kidnapping, manslaughter in the first or second, child abuse, assault with intent to kill, murder in the first degree…etc. If your charge is on this list. I am sorry, it cannot be expunged)

 

Here is what can be expunged:

  • All charges of one or more felonies were dismissed AND the defendant has never been convicted of a felony, AND has no misdemeanors or felony charges pending against them AND the statute of limitations for refiling the charge(s) has expired OR the prosecuting agency confirms that there will be no refiling. *Category does not apply to dismissal after completion of deferred or delayed sentence.
  • The defendant was charged with a nonviolent felony, the charge was dismissed following a successful completion of a deferred or delayed sentence AND the defendant has never been convicted of a felony, AND no misdemeanor or felony charges are pending against the defendant AND at least five (5) years have passed since the dismissal of the charge.
  • The defendant was convicted of a nonviolent felony* AND the defendant has not been convicted of any other felony AND the defendant has not been convicted of a separate misdemeanor in the last seven (7) years, AND no felony or misdemeanor charges are pending against the defendant AND at least five (5) years have passed since the completion of the sentence for the felony
  • The defendant was convicted of not more than two nonviolent felonies OR any offense that would require the defendant to register as a Registered Sex Offender AND no felony or misdemeanor charges are pending against the defendant AND at least ten (10) years have passed since the completion of the sentence for the felony
  • Violent Felonies

  • As stated above, Under Title 57 Section 571 of the Oklahoma Statutes there is a list considered to be “violent” felonies. They include charges like: Burglary in the first or second degree, kidnapping, manslaughter in the first or second, child abuse, assault with intent to kill, murder in the first degree…etc. If your charge is on this list. I am sorry, it cannot be expunged.
  • Nonviolent Felony Reclassified as Misdemeanor
  • The defendant was convicted of a nonviolent felony which was subsequently reclassified as a misdemeanor under Oklahoma law AND the person is not currently serving a sentence for a crime in Oklahoma or another state AND at least thirty (30) days have passed since the completion or commutation of a sentence for the crime that was reclassified AND any restitution that was ordered by the court has been paid in full AND any treatment program ordered by the court has successfully been completed by the defendant OR the defendant failed the treatment program which resulted in an accelerated or revoked sentence that has been successfully completed OR the defendant can show a successful completion of a treatment program at a later date.

The Process

          

            The process to expunge a criminal record is fairly quick. Below are the steps that your attorney will go through to expunge your criminal record:

  • Review: You and your attorney will go through your criminal record and decide if the record or charges you want expunged meet the statutory requirements broken down above.
    • Our office will often begin the process by doing an OSBI background check

  • Draft Petition: If you and your attorney find that you ARE ELIGIBLE the next step is to draft a Petition for Expungement. The Petition lays out your whole argument and why you meet the expungement requirements. You list all the parties that were involved in your arrest or charge and the statutory reference that you meet the criteria for expungement for.

  • File: When the Petition for Expungement is complete, it is filed it in the district court in the county were the arrest/charge was committed. (For example: If you have three items you want expunged off your criminal record in Oklahoma County and three items in Seminole County then you will file a Petition in EACH county with the relevant charges for each. Here, Seminole will have three charges listed in its Petition and Oklahoma will have three charges listed in its Petition).
    • Filing: Filing is a word used for when you take a legal document to the court clerk at the courthouse and ask them to literally file the document into your case file. You may have to “open” a case file and that fee is discussed below.
  • Hearing Date: A hearing will be set for the assigned judge to decide whether to grant the Petition for Expungement
    • Hearing Date Requirement: The date of the hearing by law must be at least thirty (30) days after the filing of the Petition or a Court Order has been entered.
  • Order of Expungement sent to all agencies: If all parties and/or the judge have signed the Order of Expungement then the Order will be filed in the same manner the Petition was and sent to all the relevant parties. When the parties receive the Order, they are required by law to erase all criminal records that are a part of the Order of Expungement. Refer to the Benefits section above for what this means to you!

Other Types of Expungements

  • Section 60.18 Victim Protective Order expungements
  • Title 10A covers Juvenile Crimes.

  • Victim Protective Orders
  • Expungement for victim protective orders (VPOs) seal the court records only from public inspection. Law enforcement agencies, the court and district attorney still have access to the records.
  • Persons authorized to file a motion for expungement of a VPO include:
  • An ex-parte order was issued to the victim (plaintiff) but later was terminated due to: a dismissal of the petition BEFORE a full hearing OR denial of petition BEFORE a full hearing OR failure of the victim(plaintiff) to appear to full hearing, AND at least 90 days have passed since the date was set for a full hearing.
  • The plaintiff filed an application for a VPO and failed to appear for a full hearing AND at least ninety (90) days have passed since the date last set for the full hearing, including the last date for any continuances, postponement or rescheduling of the hearing.
  • The plaintiff or defendant has had the VPO order vacated AND three (3) years have passed since the order was entered OR
  • The plaintiff or defendant is deceased.

  • Event of Identity Theft

  • The defendant has been charged OR arrested OR is the subject of an arrest warrant for a crime that was committed by another person who has appropriate or used the defendant's name or other identification without the defendant's consent or authorization

  • Prostitution-Related Offenses for Victims of Human Trafficking

  • Done by a court's motion or a petition by the defendant. The order must have a statement with 22 O.S. §19c cited in it and require the same notice requirements as the other criminal expungements. The expungement is sealed from the public but not law enforcement agencies.

  • Juvenile Crimes (Title 10A Oklahoma Statutes)

  • Non-Confidential Records
    • May have any none confidential juvenile court record(s) expunged* by Petition provided the following is met: (* expunged for this section means the record except for basic identification information)
  • Defendant is twenty-one (21) or older
  • Defendant has not been arrested for any adult criminal offenses AND no charge, indictment, or information has been filed or is pending against the defendant at the time of the Petition for expungement.
  • Defendant had any deferred prosecution or deferred sentencing, AND has not been convicted of any criminal offense AND
  • All court costs, restitution, fines and all other court-ordered requirements have been completed for all juvenile proceedings.

  • Confidential Records (Juvenile confidential records, has a similar process as in “the process” section but has different hearing and notice requirements that are listed below)
    • Juvenile Court Records are considered confidential according to 10(A) O.S. §1-6-102.
    • A petition or motion is filed with the court describing in detail the compelling reason why the confidential records should be expunged.
    • After filing, the court sets a hearing and notice is required not less than 20 days to the agency or person holding the records, any interested party, and the person who is the subject of such records (if 18 or older) OR the parents of the person who is the subject of the records (if 18 or younger).
    •  

The costs

Permanent record expungements are not cheap.  Here is a list of the fees you can expect when dealing with an expungement:

  • You will need to hire an attorney, we typically charge a flat fixed rate.
    • Our office offers payment plans and discounts for multiple cases and prior clients.
  • You will also need to pay a filing fee to file the paperwork for the expungement as a civil filing.
    • Cleveland County AND Oklahoma County charge $164
      • not required for VPOs or Juvenile crimes
    • The Oklahoma State Bureau of Investigation (“OSBI”) requires a $150 processing fee when you send them the Order of Expungement.
    • Some cities may also charge an administrative fee.

About the Author

Andrea Worden

A number of qualities go into the making of a talented attorney; experience, training, and tenacity are just a few of those qualities. When you have been arrested and accused of breaking the law, or when you are going through a tough divorce, how do you choose the right attorney? You'll want to c...

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