More cases eligible for expungements with SB397

Oregon’s lawmakers finally made some significant and much overdue changes to the expungement law. These changes went into effect January 1, 2022. Here is a quick run down of some of the big changes:

Shorter Wait Time to File For Most Cases

Class B drug and property felonies are now eligible for expungement 7 years from the conviction date or release from imprisonment, whichever is later. This is a big change from the previous law which required a 20 year wait.

Class B and C misdemeanors, violations, and contempt convictions are now eligible for expungement 1 year from the date of conviction or release from imprisonment, whichever is later.

Arrests in which the DA decides not to prosecute (also known as a “no complaint”) are now eligible 60 days from the date of the “no complaint.”

Cases in which the probation was revoked are now eligible after 3 years from the date of revocation. This is also a big change from the previous law requiring a 10 year waiting period.

The only downside with the changes in waiting periods is the wait time for Class C felonies. The new law now requires a 5 year, rather than the previous 3 year wait time. But, there are several ways to work around this time frame. I will discuss these in another post, or feel free to contact me to discuss your situation.

Shorter Wait Time When Expunging Multiple Convictions

The old law required that a person could not have any other conviction within the preceding 10 years. The new law removes the 10 year requirement and inserts the numbers above. For instance, someone expunging a Class A misdemeanor must wait 3 years from conviction and cannot have another conviction within the past 3 years rather than 10 years.

No More Court Filing Fees

Another big change is the removal of the $281 court filing fee for conviction cases. The legislature also changed the $80 OSP fee requirement to an “actual cost” requirement. OSP has set the actual cost of performing a background check for conviction cases at $33. There is no OSP fee for arrest only cases.

Limit on DA Response Time

The law now gives the DA a 120 day limit to file an objection to an expungement. The time limit is from the date the expungement was filed with the court. If the court does not receive an objection from the DA by this deadline, the court shall grant the motion.

I am pleased the see the legislature finally recognize the hardships and stigma experienced by people with criminal arrest or conviction records. And I hope that these changes will allow more eligible people to have their records cleared and move forward with a clean slate.

OREGON’S BALLOT MEASURE 110 – PART 2

Before Measure 110, possession of a personal amount of drugs was classified as an A misdemeanor for Schedule 1-3 Controlled Substance.

Measure 110 reclassifies possession of a personal amount of any of these drugs as a Class E violation.

What is a personal amount? The amounts depend on the drug and are listed in the summary below:

Schedule I Controlled Substances

LSD – Less than 40 units

Psilocybin or psilocin – Less than 12 grams

Schedule 2 Controlled Substances

Methadone – Less than 40 user units

Oxycodone – Less than 40 pills, tablets, or capsules

Heroin – Less than 1 gram

MDMA – Less than 1 gram or less than 5 pills, tablets, or capsules

Cocaine – Less than 2 grams

Methamphetamine – Less than 2 grams

Possession of more than the amounts listed above is a Class A misdemeanor. Class A misdemeanors are punishable by a maximum 364 days jail and a maximum $6,250 fine. Misdemeanor convictions are eligible for expungement 3 years from the date of conviction, assuming the person otherwise qualifies.

If the Possession constitutes a Commercial Drug Offense, the offense is a Class B felony for drugs listed in Schedule 1 and a Class C felony for drugs listed in Schedule 2. Class C felonies are eligible for expungement 3 years from the conviction date, assuming the person otherwise qualifies. Class B felonies are eligible for expungement 20 years from the conviction date if the person meets the strict criteria discussed earlier.

Oregon’s Ballot Measure 110

Oregon voters passed Ballot Measure 110 on November 3, 2020. The measure decriminalized possession of a “personal amount” of drugs. It is the first of its kind in the United States. It is significant because it recognizes the shift in the way our community views addiction. Measure 110 treats drug use as a public health, not a criminal, issue.

Before Measure 110, possession of small amounts of drugs was a crime. The criminal penalties included probation, fees, drug evaluation and treatment, and jail time. People who relapsed and used drugs during probation were often jailed for violating probation and were sometimes charged with a new crime of PCS.

What does Measure 110 mean for Oregonians?

Decriminalization

Measure 110, which goes into effect February 1, 2021, reclassifies personal amount PCS cases as Class E civil violations. This means a judge cannot impose any jail time or probations sentence upon conviction. The maximum penalty is a $100 fine. The fine can be avoided by completing a health assessment and providing proof of completion to the court within 45 days of the citation.

Health Assessment

The state is still working out the details of the assessment. Measure 110 instructs the Oregon Health Authority to set up Addiction Recovery Centers (ARCs) no later than October 1, 2021. Until the ARCs are set up, people may complete their health assessments through a temporary telephone ARC. The telephone assessment will still need to be completed, with proof provided to the court within 45 days of the citation.

$100 Fine

If you choose not to do the health assessment, the fine is $100. The court may not impose any additional penalties or jail time for failure to pay the fine. This fine is similar to a parking ticket or other violation.

REDUCING FELONY DRIVING CONVICTIONS

People convicted of a felony have a much more difficult time securing housing, employment, scholarships, and loans. They may not be allowed to volunteer in schools, youth sports, and other organizations. They can’t enter Canada, and they can’t buy or own a firearm.

While other convictions may be eligible for expungement under ORS 137.225, Oregon’s expungement law specifically excludes convictions for “traffic crimes.” Some common traffic felonies include Attempt to Elude a Police Officer, Felony Driving While Suspended, and Failure To Perform Duties of Driver (also known as Hit & Run) -Injury.

These felony charges may be eligible for reduction to misdemeanors. Once a judge reduces a felony conviction to a misdemeanor, the person is no longer a felon and can enjoy all the rights and privileges non felons enjoy.

HOW DOES IT WORK?

The law dealing with felony reductions is ORS 161.705 – 161.710. It says, in part, that the Court may enter judgment reducing a Class C felony to a misdemeanor at any time after the sentence of probation has been completed. ORS 161.710 deals specifically with Felony DWS (habitual offender suspension) committed before September 1, 1999.

The requirements for a reduction are:

The probation sentence must be completed. Probation violations aren’t necessarily a barrier, as long as the conditions (such as community service, financial obligations, classes or treatment) are ultimately completed.
The judge, considering the “nature and circumstances of the crime and the history and character of the defendant,” finds that a felony conviction would be unduly harsh. This is a really broad area, and it allows us to show a person’s current situation, why they need the reduction, what they have accomplished since the conviction, and any helpful circumstances from the crime itself or their situation at the time.

I have been very successful in helping my clients get their felonies reduced to misdemeanors. I work with them from the outset to gather information and present the best possible picture to the judge. In my view that first impression is key and likely why I have a solid track record. If you have a felony driving conviction that you would like reduced, let’s talk about how I can help you too.

GUN RIGHTS RESTORATION IN OREGON

People convicted of felonies are not allowed to possess or purchase firearms. In Oregon, they face being charged with the crime of Felon in Possession of a Firearm, which is also a felony.

The good news is that there are three options for having your Second Amendment gun rights restored. Below is a summary of each option:

First, you may petition the court to set aside the conviction and seal the record. This is commonly referred to as expungement. Once the conviction is set aside, the conviction is “deemed not to have occurred” and you may answer all questions about it under oath as it it never happened. In other words, the conviction no longer exists, and you are legally no longer a felon. Once you are not a felon, you may buy and possess firearms.

Second, you may ask the court to reduce the felony conviction to a misdemeanor. The conviction is still there, but it’s a misdemeanor rather than a felony. Once this is done you are no longer a convicted felon and may buy and possess firearms.

Third, you may petition the court for restoration of your gun rights. This has no effect on the conviction–it is still there, but the court is allowing you to purchase/possess firearms. This is done as a civil matter and is filed in the county where you currently live, rather than the county where the conviction occurred.

Each of these options has limits and requirements and may not fit your particular situation. I would be happy to talk with you about your situation, the pros & cons of each option, and which would be best for you. Let’s put my experience and solid track record to work for you and get your gun rights back.

COVID-19 AND POTENTIAL CRIMINAL CHARGES IN OREGON

On March 23, 2020 Governor Kate Brown issued Executive Order No. 20-12. The 8 page Order covers a lot of ground but this post will focus on criminal charges people face for violating the Order.

The Order directs people to stay in their homes. People may leave their homes for the following reasons, but must keep 6 feet away from others at all times:

Outside recreational activities (walking, hiking, etc.) if they can maintain 6 feet of distance and the activities are non-contact.
Essential travel to or from a home, residence or workplace.
Getting food, shelter, essential consumer needs education, health care, or emergency services.
For essential government services.
To care for family, children, vulnerable people, pets, livestock.
Travel as directed by government officials, law enforcement, or courts.

The Order expressly prohibits non-essential social and recreational gatherings (such as parties and celebrations) outside of a home or place of residence if a distance of at least 6 feet between individuals can’t be maintained. At first glance, it looks like a party at a home would be allowed but remember: people are only allowed to leave their homes for essential reasons as listed above.

Violation of the Order carries a maximum 30 days in jail and fine of $1,250.

In Portland, for example, police have stated that they will first issue warnings, and that people who don’t comply may be cited under the Executive Order as well as ORS 162.247 for Interfering with a Police Officer (failing to comply with a lawful demand). This charge is a Class A misdemeanor and carries a maximum 364 days in jail and fine of $6, 250.

Businesses that aren’t in compliance with the Order may be referred to their licensing agency. For example, bars not in compliance would be referred to the Oregon Liquor Control Commission (OLCC) for review. OLCC could then take action regarding the business’s license.

I hope our community is able to stay as safe and healthy as possible during this time, and that very few, if any, people and businesses are accused of violating the executive order. But know that, if you are cited by police or OLCC, I am ready to defend you.

SB420 Expungements – Which Marijuana Convictions are Covered?

The earlier post covered the benefits of SB420 for expunging marijuana convictions. SB420 only applies to a “qualifying marijuana conviction.” Let’s look at what this means:

Some convictions eligible for SB420 expungement include:

Possession of less than an ounce of marijuana
Possession of no more than 8 ounces of usable marijuana
Delivery of less than an ounce of usable marijuana
Manufacture of no more than 4 plants per household

ORS 475B.301 lists in detail the cases that are covered. They include possession, delivery, and manufacture of marijuana, cannabinoid products, and cannabinoid concentrates & extracts. However, there are strict limits on the amounts.

Cases not eligible for expedited expungement under SB420 include: delivery to minors, substantial quantities, and commercial drug offenses.

If your case is the type of charge covered by SB420 (see above), you must also meet these general requirements:

1. You must have completed or fully complied with the sentence of the court. In other words, you did what the judge ordered you to do. This may have included paying a fine, not using or possessing drugs, completing community service, completing a drug evaluation and treatment.

2. The offense must have happened before July 1, 2015.

3. You must have been at least 21 years old at the time of the offense (the age limit does not apply to PCS Less Than an Ounce). There is a separate law dealing with people under the age of 21 convicted of other marijuana offenses, and I will cover that next time.

*Remember, SB420 is a quick and easy way to expunge some marijuana convictions. If your case doesn’t qualify for SB420 expungement, it may be eligible for expungement under ORS 137.225.

This is a brief overview of eligibility. You should consult with a
qualified expungement attorney about the specifics of your case to see whether SB420 will work for you.

Expunging Old Convictions for Growing Marijuana

When Oregon legalized marijuana, it also expanded the expungement law to include MCS Marijuana and DCS Marijuana. Now, people convicted of Growing Marijuana or delivering marijuana canOregon now allows people convicted of growing marijuana to have their convictions expunged. Before the changes in the law, Manufacturing Marijuana (MCS Marijuana) was a class A felony and not eligible for expungement.

THE LAW
Within the lengthly law governing the legalization of marijuana is a small blurb stating, in essence, that marijuana convictions occuring before legalization are to be treated, for expungement purposes, as if they occurred under the current marijuana classification.

This means that for instance, before legalization, growing marijuana was a class A felony. Class A felonies are not eligible for expungement in oregon. After legalization, growing marijuana is legal (up to a certain number
This new law has been in effect for quite some time now. But, I still hear from a lot of people who aren’t aware of it. Their lives have been impacted because they grew marijuana. Some of these folks have convictions for growing marijuana 30 or 40 years ago. For far too long they have struggled with the stigma of being a “convicted felon” and all that this label implies. They have endured embarrassing background checks for employment and housing. In many cases they have lost out on jobs, promotions, loans, licenses, leases, and other opportunities not available to felons.

Shortly after the new law was enacted, I argued the issue od MCS Marijuana in multiple counties throughout the state. I have educated judges and District Attorneys on this very important change in Oregon’s expungement laws regarding expunging convictions for growing marijuana.

If you have a conviction for MCS, DCS, or possession of marijuana, I urge you to call me to discuss your case.

http://nwnewsnetwork.org/post/marijuana-felony-expunged-oregon-man-has-tears-joy

Arrested in Portland for Commercial Sexual Solicitation?

Arrested in Portland for Hiring a Prostitute? You may be able to get the case dismissed through the community court program. This program, unique to Multnomah County, is for people charged with Commercial Sexual Solicitation, a Class A misdemeanor. Commercial Sexual Solicitation was formerly known as Patronizing a Prostitute, or Prostitution.

THE PROGRAM

The community court program is not available for people charged with prostitution related felonies, such as Promoting Prostitution and Compelling Prostitution.

If you successfully complete the program, the judge will dismiss your case. The program requires that you remain crime free for 6 months and that you attend a 1 day “Johns” class. The class costs around $1,000. The class is usually offered on a Saturday. It is held once a month, or once every other month. If you live out of state, you will need to make arrangements to attend the class. But, I may be able to have your appearances in court waived.

THE DISMISSAL

Many people believe that once the judge dismisses the charge of Commercial Sexual Solicitation, the records are automatically erased. This is not true. There are still court records, DA records, and police records we will need to have sealed (commonly called “expungement”).

We can begin the process of having the record of arrest (or citation) expunged as soon as the judge dismisses your case. Once the judge signs the expungement order, you may swear under oath that you have never been arrested or cited for a crime. We can also take steps to ensure that the record does not appear on any internet background searches.

I have worked with many people accused of Commercial Sexual Solicitation and Prostitution related crimes. I understand and appreciate my clients’ needs for discretion. And I work with them to resolve their cases and expungements as quickly and smoothly as possible.

A Big Thanks

I received this e-mail from a client a few weeks ago:

“I am in receipt of both letters and all signed orders sent from your office. It was quite emotional reading them and coming to the realization that this chapter of my past is now closed, and truly behind me. Thank you again for your guidance, expertise and advice. It is a good day for me today. With kind regards and sincere appreciation.”

This is one of the nicest thank you notes I’ve ever received. It made me think about how lucky I am to be working in a field that I love with the added bonus of being able to do something good. What a great combination! In the future, this blog will cover legal issues, changes and trends in the areas of DUII, criminal defense, and expungements that might affect my clients. But I couldn’t think of a better way to start off a new blog than with a big thank you right back to my clients, both current and former. Thank you for putting your trust in me. For handing over your future to someone you’ve just met. For passing on my name when your friends and family need me. I recognize that criminal charges have a huge impact on your life, and I take them as seriously as you do. I’ve had a great twenty years practicing criminal defense and can’t wait to see what the next twenty will bring. Thank you.

Sandi Pellikaan

Attorney At Law

Attorney at Law