MAJOR EXPUNGEMENT CHANGES OCCURRED IN 2016
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.
Expungement is the process of “clearing” one’s criminal record. 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.
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.
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 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.
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.
The Oklahoma Expungement laws allow for a VPO (Victim’s Protective Order) to be expunged under certain circumstances.
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.
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.
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!
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:
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.
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.
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:
FELONY CRIMES RE-CLASSIFIED AS MISDEMEANORS. For non-violent felony crimes which today are re-classified as misdemeanors, expungement is available 30 days after completion of the sentence or 30 days after commutation of the sentence – assuming that ALL other conditions of probation are fulfilled (including treatment if ordered), restitution is paid, court costs are paid, etc. This section may also apply to revocations and accelerations of probationary sentences in some circumstances. (**Note: Reclassification under 2019 law does NOT mean that a former felony conviction becomes a misdemeanor conviction. It merely changes the potential length of the sentence).
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.
To determine if your record can be expunged, we need to know:
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?)
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.
A “nonviolent offense” means any felony offense except the following, or any attempts to commit or conspiracy or solicitation to commit the following crimes:
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.