NEW EXPUNGEMENT LAW in November 2014
Bob Wyatt has been an Oklahoma Expungement Attorney since 1989. He has handled all types of expungements (Section 18, Section 991c, and VPOs) during his career and even teaches other lawyers on the subject. Under Oklahoma Expungement Law, someone with a criminal record might be able to have the “conviction” expunged or erased from the client’s court file. This is also known as “sealing” the record. There are only limited circumstances when an “arrest” record can be “expunged” (or “cleared”). In other jurisdictions, this is 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 many clients in expunging their criminal records.
MAJOR CHANGES TO EXPUNGEMENT LAW
WERE ENACTED NOV. 1, 2012 and 2014
The timing and eligibility requirements (scroll down) changed again in November 2014. Since November 2012, clients seeking expungement now have the options available here:
DEFERRED SENTENCE RECORDS SEALED & EXPUNGED
A deferred sentence in reality is not a conviction and is not a 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 new Section 18 with the new changes since November 1, 2012.
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 that 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.
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
Suspended sentences and prison terms for non-violent offenses are both “convictions” which may qualify for expungement under Section 18. The new law (November 1, 2014) really does little to the way suspended sentences or other convictions are expunged. However, there are new requirements, and now if you have two convictions arising from the same event, you may be eligible for expungement since the 2014 changes went into effect.
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 (arising from separate transactions), Section 18 still allows for expungement. We simply have to review the facts and charges in your case to determine if you are 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.
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.
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. Still under construction.
VICTIMS PROTECTIVE ORDERS (VPOs)
The Oklahoma Expungement laws allow for a VPO (Victim’s Protective Order) to be expunged under certain circumstances. Still under construction.
SEX OFFENSE RECORDS
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 expungement 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
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 & 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 your 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 case. 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 Supremecy 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. For some felonies, a pardon may be required before being 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. 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 misdemeanor or 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, as set forth 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 misdemeanor or felony, no misdemeanor or felony charges are pending against the person, AND at least ten (10) years have passed since the charge was dismissed;
10. MISDEMEANOR CONVICTION OR SUSPENDED SENTENCE: The person was convicted of a misdemeanor offense, the person has not been convicted of any felony, no felony or misdemeanor charges are pending against the person, and at least ten (10) years have passed since the end of the misdemeanor sentence;
11. NON-VIOLENT FELONLY CONVICTION OR SUSPENDED SENTENCE: The person was convicted of a nonviolent felony offense, as defined 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 15 years; no felony or misdemeanor charges are pending against the person, AND at least ten (10) years have passed since the conviction; or
12. 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. Records expunged pursuant to paragraphs 8, 9, 10, 11 and 12 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 and 11 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 said records.
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 state through chief executive, upon offenders against its laws.” 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 a arrest record identifying the crime and date of offense, but the record will read “Pardoned by the Governor” or something like that.
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 hasbeen 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 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 (57 Okla. Stat. §571)violent-felonies-list, 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
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; or
41. Mistreatment of a Mental Patient.
INFORMATION NEEDED BY WYATT LAW OFFICE
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 at the OSBI web page.
(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.