MAJOR EXPUNGEMENT CHANGES OCCURRED IN 2016
Expungement is the process of “clearing” one’s criminal record. Bob Wyatt has been an Oklahoma Expungement Lawyer & Attorney since 1989. He has handled all types of expungements (Section 18, Section 991c and VPOs) during his career, and he wrote the 60-page article EXPUNGEMENTS UNABRIDGED (2012), which he presented to other lawyers at the Oklahoma Criminal Defense Institute. Under Oklahoma Expungement Law, someone with a criminal record might be able to have the “conviction” expunged or erased from the court file. This is also known as “sealing” the record. There are only limited circumstances when an Oklahoma “arrest” record can be “expunged” (or “cleared”). In other jurisdictions, this process may be known as an “expunction.” One of Bob Wyatt’s responsibilities while he was a legal intern at the OSBI was to examine the merits of expungement, and since entering into private practice in 1989, he has represented hundreds of clients needing to expunge their Oklahoma criminal arrest records. When you need your Oklahoma criminal record cleared, the choice for experienced Oklahoma counsel is the Wyatt Law Office.
CATEGORIES OF EXPUNGEMENTS
· Misdemeanor Deferred Sentence
· Non-violent Felony Deferred Sentence
· Misdemeanor Conviction (if fined under $501)
· Misdemeanor Conviction or Suspended Sentence or Fined over $500
· Non-violent Felony Conviction or Suspended Sentence
· Two Non-Violent Felony Convictions
· Arrested, but No Charges were Ever Filed
· Not Guilty — Acquittal at Trial
· Conviction Reversed on Appeal
· Minor under 18 When Convicted
· Actual Innocence Pardon
· DNA Exoneration
· Mistaken Identity (someone else convicted with your name)
For purposes of Section 18, “expungement” shall mean the sealing of criminal records.
If you have investigated the possibility of clearing your record before and were told there was nothing that could be done about your RAP sheet, NOW IS THE TIME to reevaluate your circumstances. New expungement laws were passed in 2012, 2014 and 2016. Completely sealing your deferred sentence from public view was not possible until November 2012. Timing and eligibility requirements changed again in November 2014 and 2016. If you meet all of the new criteria, we may be able to seal all of your record. We can review your criminal history record to determine if you are eligible. (Scroll down to Am I eligible?)
REASONS TO CLEAR OR EXPUNGE YOUR OKLAHOMA CRIMINAL ARREST RECORD
- You can’t pass an Oklahoma background check.
- Your Oklahoma criminal arrest record is holding you back.
- Employers are turning you away because of your Oklahoma criminal arrest record.
- You are applying for graduate school or college with an Oklahoma criminal arrest record.
- You can’t get a professional license for your job because of your Oklahoma criminal arrest record.
- You are planning foreign travel, but can’t go because of your Oklahoma criminal arrest record.
- You want a concealed carry permit, but you have an Oklahoma criminal arrest record.
- You just want to clean up your Oklahoma criminal history and arrest record.
DEFERRED SENTENCE RECORDS EXPUNGED IN OKLAHOMA
A deferred sentence is not really a conviction because it does not result in a criminal sentence. If you pled guilty or even no contest to a crime and the judge deferred sentencing, you have not been convicted. In Oklahoma, a person must be sentenced before there is a conviction. Because sentencing was deferred or continued to a future date, there was no “conviction” at the time of the plea.
If you successfully complete a deferred sentence, there are now two options available to you: (1) Section 991 expungement, or (2) Section 18 expungement if you meet certain new criteria.
If your deferred sentence was accelerated, you may not qualify under Section 991, but it is possible that you may still be eligible under the Section 18 after additional criteria are satisfied.
So long as you successfully completed the deferred sentence (meaning avoided any further trouble with the law, paid all costs and paid all fines, completed community service, passed drug tests, and fully complied with all other probation requirements), then we can guarantee a Section 991 expungement. Note, however, that this only seals the courthouse file. A Section 991 expungement will NOT seal your arrest record with the police or the OSBI.
A Section 991 expungement is still valuable because it seals the court file. That means it is not searchable on www.oscn.net or www.odcr.com. Employers frequently check these free web sites or perform background checks on employees; thus, having the file sealed can be vital to your continued or new employment.
OKLAHOMA LAW NOW ALLOWS “COMPLETE” SEALING OF A DEFERRED SENTENCE
As of November 1, 2012, a person who successfully completed a deferred (as described above) may be eligible to fully seal the arrest record (police, county sheriff and OSBI) if certain other criteria are met. This applies to all misdemeanors and non-violent felonies.
SUSPENDED SENTENCE & PRISON SENTENCE RECORDS EXPUNGED IN OKLAHOMA
Suspended sentences and prison terms for non-violent offenses are “convictions” which may qualify for expungement under Section 18. Depending on your circumstances and assuming that (1) the crime of conviction is a misdemeanor or a non-violent felony, and (2) you don’t have more than one felony or misdemeanor conviction, Section 18 still allows for expungement. We simply have to review the facts and charges in your case to determine if you are eligible.(Scroll down to Am I eligible?). If eligible, then we must file a petition in District Court suing the Custodian of Records for the arresting agency (i.e., the police), the County Sheriff, and the OSBI. If the parties agree to the petition for expungement (which often happens), generally no hearing will be required. If any required agency objects, then a judge will determine whether your right to privacy (a sealed record) is more important than the public’s right to know about your record.
*Note: A deferred sentence is NOT a conviction, so even if you have one deferred and one conviction (suspended or prison), we may still be able to help you.
A list of violent offenses (which are not eligible for expungement) is set forth below.
If successful, your arrest record and court file will be expunged and not available for public inspection. In job or college applications and other pursuits, in most situations you may lawfully state that the matter “never happened” or you may lawfully omit disclosure of the event. Expungement causes the event to be treated as null and void – as if it never happened.
JUVENILE RECORDS EXPUNGED IN OKLAHOMA
The Oklahoma Expungement laws allow for certain juvenile and/or youthful offender pleas, adjudications or convictions to be expunged depending on the charge and/or circumstances.
VICTIMS PROTECTIVE ORDERS (VPOs) EXPUNGED IN OKLAHOMA
The Oklahoma Expungement laws allow for a VPO (Victim’s Protective Order) to be expunged under certain circumstances.
SEX OFFENSE RECORDS EXPUNGEMENT IN OKLAHOMA
If your sex offense was after 1998, it is highly unlikely that you would qualify. Even if your offense was before 1998, if you were convicted (served time or received a suspended sentence), there is probably little that can be done because certain types of expungements are discretionary to the court. We simply have to evaluate each situation on a case-by-case basis.
For sex crimes before 1998 that resulted in a deferred sentence, we may be able to help either under Section 18 or Section 991 – again depending on the crime charged, the facts supporting the charge, and the result achieved in your original criminal case.
The new law does not change the expungement options for sex offenders.
MUNICIPAL CRIMINAL RECORDS EXPUNGED IN OKLAHOMA
All municipal or city charges/tickets or convictions are misdemeanors. Municipal courts do not have jurisdiction to prosecute a felony. There are different expungement procedures that apply depending on whether you were (1) acquitted (i.e., found not guilty), (2) the charges were dismissed, (3) you received and successfully completed a deferred or continued sentence, or (4) received a suspended sentence or were actually put in jail. Under any of these scenarios, you may be eligible either for a Section 18 or Section 991 expungement.
If you are eligible, we must determine which section is applicable to you. Contact us to review your case.
IDENTITY THEFT VICTIMS
Someone stole your identity and got arrested.
If you were arrested because someone used your name or identity when they were arrested, you may be able to proceed under an expedited expungement procedure. This provision is only available for someone whose name or identity was misappropriated without consent. For example, if your brother used your name or your driver’s license when he was arrested for DUI in order to try to avoid a second or subsequent conviction for DUI (and you were not aware he used your name or license), then you can petition the court to “clear” your record under this provision.
You can even obtain an OSBI “Identity Theft Passport” that can be used to show prospective employers or law enforcement or judges that your name or identity has previously been misappropriated in the event the issue comes up again in the future.
This is available only if your identity was misappropriated by another person at the time of their arrest or conviction.
Unfortunately at this time, you cannot expunge your driver’s record. The legal reasoning that precludes expungement of the driver’s record is that the driver’s record is maintained by the Department of Public Safety (“DPS”) as part of an “administrative” procedure and not a “criminal” procedure. The good news is that currently a driver’s record is available to the public for only three (3) years, so if you avoid any additional tickets, your record will go away on its own soon.
Why do you need a lawyer for a traffic ticket?
NOTE: If you get a ticket, be sure to contact a lawyer to handle the traffic offense. If you get a “deferred” or “continued” sentence for a traffic offense, that offense will not be placed on your permanent driver’s record and will not be subject to public view. That is because technically a deferred sentence or a continued sentence is not really a conviction. Because your driver’s record only lists convictions, it is important to resolve traffic offenses in a manner that will not affect your license or your insurance. A deferred sentence is not a conviction!
FEDERAL CRIMINAL RECORDS
1st Time Federal Drug Offenders
The only statutory provision for expungement of a federal crime is for (1) “first-time” drug offenders, (2) who were charged with “simple possession of CDS,” (3) who were under age 21 at the time of the offense, and (4) who have not had a federal expungement already. You must meet ALL of these criteria to be eligible.
Other Federal Expungements Generally Prohibited
Generally, there is no other statutory provision for expungement of a federal crime; accordingly, sealing a federal criminal arrest or conviction is very rarely possible. There are, however, always exceptions if:
1. There was an unconstitutional arrest;
2. You can show significant harm from the arrest record; and
3. That harm outweighs the public’s interest in maintaining the record.
This is only available if the federal judge exercises “inherent judicial powers” because there is no statutory expungement like the state court system. It is also possible that a federal court could grant an expungement if there was unlawful harassment from law enforcement or proof of intentional government misconduct in the criminal investigation or if an arrest was made without probable cause. Again, it is highly unlikely that a federal arrest or conviction can be expunged.
The new law does not impact federal crimes because a state law cannot direct a federal judge’s actions under the Supremacy Clause of the United States Constitution.
eligible? EXPUNGEMENT ELIGIBILITY REQUIREMENTS
Can I seal or expunge my Oklahoma conviction or deferred sentence? Examine the requirements for the different type of expungements. The requirements are different for each category. Note that if you have a felony conviction, a pardon is likely required before you are eligible for expungement.
EXPUNGEMENT LAW CHANGED IN NOVEMBER 2016. You may be eligible NOW even if you were not previously eligible. Examine the requirements for the different type of expungements. The requirements are different for each category. Note that if you have a felony conviction, a pardon is likely required before you are eligible for expungement.
For a “complete expungement,” you must meet the requirements of Section 18. However, you may still qualify under Section 991 if cannot meet the following conditions by falling within one of the following categories:
1. NOT GUILTY: The person has been acquitted;
2. CONVICTION REVERSED: The conviction was reversed with instructions to dismiss by an appellate court of competent jurisdiction, or an appellate court of competent jurisdiction reversed the conviction and the district attorney subsequently dismissed the charge;
3. DNA EXONERATION: The factual innocence of the person was established by the use of deoxyribonucleic acid (DNA) evidence subsequent to conviction, including a person who has been released from prison at the time innocence was established;
4. ACTUAL INNOCENCE PARDON: The person has received a full pardon on the basis of a written finding by the Governor of actual innocence for the crime for which the claimant was sentenced;
5. ARRESTED, BUT NO CHARGES FILED: The person was arrested and no charges of any type, including charges for an offense different than that for which the person was originally arrested are filed and the statute of limitations has expired or the prosecuting agency has declined to file charges;
6. MINOR UNDER 18: The person was under eighteen (18) years of age at the time the offense was committed, and the person has received a full pardon for the offense;
7. DISMISSAL: The person was charged with one or more misdemeanor or felony crimes, all charges have been dismissed, the person has never been convicted of a felony, no misdemeanor or felony charges are pending against the person, and the statute of limitations for refiling the charge or charges has expired or the prosecuting agency confirms that the charge or charges will not be refiled; provided, however, this category shall not apply to charges that have been dismissed following the completion of a deferred judgment or delayed sentence;
8. MISDEMEANOR DEFERRED SENTENCE: The person was charged with a misdemeanor, the charge was dismissed following the successful completion of a deferred judgment or delayed sentence, the person has never been convicted of a felony, no misdemeanor or felony charges are pending against the person, and at least one (1) year has passed since the charge was dismissed;
9. NON-VIOLENT FELONY DEFERRED SENTENCE: The person was charged with a nonviolent felony offense, not listed in Section 571 of Title 57 of the Oklahoma Statutes, the charge was dismissed following the successful completion of a deferred judgment or delayed sentence, the person has never been convicted of a felony, no misdemeanor or felony charges are pending against the person, and at least five (5) years have passed since the charge was dismissed;
10. MISDEMEANOR CONVICTION FINED UNDER $501: The person was convicted of a misdemeanor offense, the person was sentenced to a fine of less than Five Hundred One Dollars ($501.00) without a term of imprisonment or a suspended sentence, the fine has been paid or satisfied by time served in lieu of the fine, the person has not been convicted of a felony, and no felony or misdemeanor charges are pending against the person;
11. MISDEMEANOR CONVICTION IN PRISON OR SUSPENDED & FINED OVER $500: The person was convicted of a misdemeanor offense, the person was sentenced to a term of imprisonment, a suspended sentence or a fine in an amount greater than Five Hundred Dollars ($500.00), the person has not been convicted of a felony, no felony or misdemeanor charges are pending against the person, and at least five (5) years have passed since the end of the last misdemeanor sentence;
12. NON-VIOLENT FELONY CONVICTION OR SUSPENDED SENTENCE: The person was convicted of a nonviolent felony offense, not listed in Section 571 of Title 57 of the Oklahoma Statutes, the person has received a full pardon for the offense, the person has not been convicted of any other felony, the person has not been convicted of a separate misdemeanor in the last fifteen (15) years, no felony or misdemeanor charges are pending against the person, and at least ten (10) years have passed since the conviction;
13. TWO NON-VIOLENT FELONY CONVICTIONS: The person was convicted of not more than two nonviolent felony offenses, not listed in Section 571 of Title 57 of the Oklahoma Statutes, the person has received a full pardon for both of the nonviolent felony offenses, no felony or misdemeanor charges are pending against the person, and at least twenty (20) years have passed since the last misdemeanor or felony conviction
14. MISTAKEN IDENTITY/IDENTITY THEFT: The person has been charged or arrested or is the subject of an arrest warrant for a crime that was committed by another person who has appropriated or used the person’s name or other identification without the person’s consent or authorization.
For purposes of Section 18, “expungement” shall mean the sealing of criminal records. For purposes of seeking an expungement under the provisions of paragraph 10, 11, 12 or 13 of subsection A of this section, offenses arising out of the same transaction or occurrence shall be treated as one conviction and offense. Records expunged pursuant to paragraphs 8, 9, 10, 11, 12, 13 and 14 of subsection A of this section shall be sealed to the public but not to law enforcement agencies for law enforcement purposes. Records expunged pursuant to paragraphs 8, 9, 10, 11, 12 and 13 of subsection A of this section shall be admissible in any subsequent criminal prosecution to prove the existence of a prior conviction or prior deferred judgment without the necessity of a court order requesting the unsealing of the records. Records expunged pursuant to paragraph 4, 6, 12 or 13 of subsection A of this section may also include the sealing of Pardon and Parole Board records related to an application for a pardon. Such records shall be sealed to the public but not to the Pardon and Parole Board.
PARDON FOR OKLAHOMA CRIMES (Required for Some Expungements)
Pardon authority is given to the Governor by the Oklahoma Constitution (Art. 6, § 10) and the Oklahoma Statutes. A pardon is an “act of grace and mercy bestowed by the state through its chief executive, upon offenders against its laws.” Ex parte Jones, 25 Okl. Cr. 347, 220 P. 978 (1923). Before the Governor may grant a pardon, you must receive a favorable recommendation by a majority of the members of the Pardon and Parole Board.
A pardon is merely an official “forgiveness” of a crime. Obtaining a pardon does not result in “clearing” or “expunging” your record. Even after the Governor issues a pardon, you will still have an arrest record identifying the crime and date of offense, but the record will read “Pardoned by the Governor” or something similar.
Pardons require filling out an 18-page application, providing certified copies of court documents, appearing before the Pardon and Parole Board, and final approval by the Governor. Pardons are difficult to obtain and given the current political climate in Oklahoma, fewer and fewer are going to be granted. Having an experienced lawyer guide you through the pardon and parole process will help, but the results cannot be guaranteed. Not that pardons are obtained through a political process under the Executive Branch and not through the courts or Judicial Branch of government.
If a pardon is or has been successfully obtained, you may be able to move forward with expunging the charges under Section 18 after our lawyers have examined the situation and factors regarding your conviction.
Not all felony charges require a pardon before becoming eligible for expungement. If you were convicted (e.g., sentenced to a jail or prison term or a suspended sentence) of a non-violent felony, you must first obtain a pardon before qualifying. The same is true for any felony conviction received by a person who was under age 18 at the time of conviction.
If you received a deferred sentence, a pardon is not required. If you were convicted of a violent felony (listed in 57 Okla. Stat. § 571), you will not qualify for a pardon or expungement.
Pardon by the President. This is generally limited to pardons of federal or military crimes. You can read more at the DOJ Pardon Attorney website.
LIST OF VIOLENT CRIMES, WHICH ARE NOT ELIGIBLE FOR SECTION 18 EXPUNGEMENT, BUT MIGHT BE ELIGIBLE FOR SECTION 991c EXPUNGEMENT
A “nonviolent offense” means any felony offense except the following, or any attempts to commit or conspiracy or solicitation to commit the following crimes:
1. Assault, Battery, or Assault and Battery with a Dangerous Weapon;
2. Aggravated Assault and Battery on a Police Officer, Sheriff, Highway Patrolman, or Any Other Officer of the Law;
3. Poisoning with Intent to Kill;
4. Shooting with Intent to Kill;
5. Assault with Intent to Kill;
6. Assault with Intent to Commit a Felony;
7. Assaults While Masked or Disguised;
8. Murder in the First Degree;
9. Murder in the Second Degree;
10. Manslaughter in the First Degree;
11. Manslaughter in the Second Degree;
13. Burglary in the First Degree;
14. Burglary with Explosives;
15. Kidnapping for Extortion;
18. Robbery in the First Degree;
19. Robbery in the Second Degree;
20. Armed Robbery;
21. Robbery by Two (2) or More Persons;
22. Robbery with Dangerous Weapon or Imitation Firearm;
23. Child Beating;
24. Wiring Any Equipment, Vehicle or Structure with Explosives;
25. Forcible Sodomy;
26. Rape in the First Degree;
27. Rape in the Second Degree;
28. Rape by Instrumentation;
29. Lewd or Indecent Proposition or Lewd or Indecent Act with a Child;
30. Use of a Firearm or Offensive Weapon to Commit or Attempt to Commit a Felony;
31. Pointing Firearms;
33. Inciting to Riot;
34. Arson in the First Degree;
35. Injuring or Burning Public Buildings;
37. Criminal Syndicalism;
39. Obtaining Signature by Extortion;
40. Seizure of a Bus, Discharging Firearm or Hurling Missile at Bus;
41. Mistreatment of a Mental Patient;
42. Using a vehicle to facilitate the discharge of a weapon pursuant to Section 652 of Title 21 of the Oklahoma Statutes.
INFORMATION NEEDED FOR OKLAHOMA EXPUNGEMENT OF CRIMINAL RECORDS
To determine if your record can be expunged, we need to know:
(1) The county where the charges were filed.
(2) The year and case number if possible.
(3) The type of sentence you received (for example: time to serve, a suspended sentence or a deferred sentence, or a split sentence with prison and probation).
(4) Ideally, we would like a copy of your OSBI Criminal Record Check, which is available at 6600 N. Harvey, Building No. 6, Oklahoma City — which is one block west of Broadway Extension at NW 63rd Street. Or you can order at copy on the OSBI website.
(5) Not everyone is eligible, so call or write for more information. Sometimes when it appears that you are not eligible, you are. There is no loss to see if you are eligible.
EXPERIENCED OKLAHOMA EXPUNGEMENT LAWYERS & ATTORNEYS
Call the Wyatt Law Office at 405.234.5500 for your Oklahoma Expungement & Pardon Lawyers and Attorneys. Your future is our business.
This is such a large part of our practice that we created an independent web page at www.buryyourpast.com.