Oklahoma Bar Journal
Facets of Expungement of Criminal Records in Oklahoma
By Orval Edwin Jones
Procedures and qualifications for expungement of criminal records in Oklahoma should be well understood by any criminal defense lawyer.1 There are two types of expungements: general expungement of criminal records arising from a special civil proceeding prescribed in 22 O.S. §19; and special expungement provisions pertaining to individual cases, in which the statutory authority to seal records is limited to the court records generated in the particular case.2
The Court of Criminal Appeals has held that a district court in a criminal case has no jurisdiction to seal arrest records and other law enforcement records pursuant to 22 O.S. §991c.3 Although a general expungement is directed to the sealing of criminal investigation and prosecution records, it is understood to be a civil case. The Oklahoma Supreme Court recently stated:
Generally speaking, the demarcation line between civil and criminal subject matter is well-defined and obvious, but that is not always the case. Examples of legal proceedings which have both criminal and civil components include … expungement proceedings …
Contrary to the State’s assertion, we do not believe that the mere placement of [a statute] within Title 22 renders the provision, ipso facto, a criminal enactment. Title 22 contains multiple provisions which are unquestionably matters of civil law.4
Title 22 for a short period of time required general expungement appeals to be filed in the Court of Criminal Appeals, but the Legislature revised the appeals process to place appellate jurisdiction in the Oklahoma Supreme Court, where it remains.5
HISTORY OF EXPUNGEMENT IN OKLAHOMA
Before adoption of the general expungement statute in 1987,6 Oklahoma had no history of judicial expungement of law enforcement records. It has been noted, “Traditionally, courts have been of the view that the matter of expunging an arrest record where the arrestee has been acquitted was inappropriate for judicial action, and that the entire matter was more appropriate for legislative action.”7 In 1975, after a well-known Oklahoma City attorney was acquitted of criminal charges in federal court, the United States Court of Appeals upheld the district court’s decision not to expunge arrest records pursuant to its equitable power.8 The court said that the power to expunge arrest records should be reserved for cases “where the arrest itself was an unlawful one, or where the arrest represented harassing action by the police, or where the statute under which the arrestee was prosecuted was itself unconstitutional.”9
A study on the effects of arrest records on the residents of the District of Columbia found that “the use of arrest records by prospective employers was widespread, and the consequences of a person having been arrested, even if the charges were subsequently dismissed, were severe.”10 It was noted in 1975 that “only a few states have statutes providing for the expungement, sealing, or returning of the record when there is no conviction, and often these involve a long and laborious procedure.”11 It was also noted that state laws “vary considerably in the relief given.”12
The Oklahoma Legislature enacted the general expungement statute in 1987, making acquittal the first ground for statutory expungement.13 The other original grounds for expungement were: no charges were filed or charges were dismissed within one year of the arrest; no charges were filed and the statute of limitations had expired; or the person was under 18 when the offense was committed and also had received a full pardon for the offense.14 In 1997, the Legislature added a new ground: conviction was reversed by appellate court with instructions to dismiss; or the district attorney dismissed charges after
a reversal of conviction.15
STATUTORY EXPUNGEMENT FRAMEWORK IN THE 21ST CENTURY
The procedures for general expungement are found in the Oklahoma Criminal Code16 and have remained essentially unchanged since enactment. The grounds to qualify for expungement, however, have been expanded by amendment more than 10 times since the year 2000.17 As of November 2018, the following are the qualifications for an expungement of criminal records:18
- Conviction reversed and charge dismissed;
- Factual innocence based on DNA evidence subsequent to conviction;
- Full pardon based on actual innocence;
- No charges of any type were filed and limitations period has run or prosecutor has declined all charges including charges of a different type;
- Juvenile offense with full pardon;
- Charges filed, then dismissed and will not be refiled (does not include dismissals after deferred judgment or delayed sentence, and does not include defendants with felony conviction or pending felony or misdemeanor charge);
- Misdemeanor charge filed, then dismissed following successful completion of deferred judgment or delayed sentence, no felony convictions, no charges pending, passage of one year since charge dismissed;
- Nonviolent felony charge filed, then dismissed following successful completion of deferred judgment or delayed sentence, no felony convictions, no charges pending, passage of five years since charge dismissed;
- Misdemeanor conviction, sentenced to a paid fine of $500 or less, no felony convictions, no charges pending (there is no waiting period);
- Misdemeanor conviction, penalty exceeds $500 fine, no felony convictions, no charges pending, passage of five years since end of last misdemeanor sentence;
- Nonviolent felony conviction, no conviction for another felony or separate misdemeanor in past seven years, no charges pending, passage of five years since completion of sentence for felony conviction;
- Conviction of not more than two nonviolent felonies, full pardon for both offenses, no charges pending, passage of 20 years since the last criminal conviction;
- Person charged, arrested or arrest warrant issued for a crime committed by another person who misappropriated the person’s name or identity.
The most far-reaching of these newer grounds is found in paragraph 10, which as of November 2016 has permitted a defendant to take a conviction and then immediately seek an expungement of arrest and court records if the penalty was only a fine in an amount less than $501.19
A review of just over 500 expungement cases filed pursuant to Section 18 seeking expungement of Oklahoma City Police Department arrest records from Nov. 1, 2016, through June 30, 2018,20 showed that expungement on grounds of actual or presumed innocence was sought in less than 1 percent of these cases for all grounds in paragraphs 1, 2, 3, 4, 6 and 14 of Section 18(A) of Title 22. The other grounds based on actual or presumed innocence, paragraphs 5 and 7, were presented, respectively, in 11 and 13 percent of the cases, less than one-fourth of the cases. On the other hand, more than three-fourths of the expungement cases were based on grounds that did not exist until after the year 2000: paragraph 8 was invoked in 31 percent of the cases; paragraph 9 in 15 percent; paragraph 10 in 16 percent; and paragraph 11 in 10 percent. Paragraphs 12 and 13 combined were invoked in fewer than 5 percent of the cases.
GENERAL EXPUNGEMENT PROCEDURE
An expungement proceeding is commenced by filing a petition in the district court sitting in the district in which the arrest records in question are located.21 The arresting agency, prosecuting agency and Oklahoma State Bureau of Investigation (OSBI) are entitled to notice of 30 days before a hearing is conducted.22 Any agency or aggrieved party can file an appeal to the Oklahoma Supreme Court and OSBI is a necessary party to any appeal.23
Expungement of law enforcement records comes in two main varieties. Section 18(D) provides in general that grounds based on actual or presumed innocence24 give rise to expungements that seal an arrest record from the public as well as law enforcement agencies. Expungements based on grounds that allow for guilty pleas, deferred sentencing, probation and even convictions, are to be “sealed to the public but not to law enforcement agencies for law enforcement purposes.”25 Thus it is important in seeking relief to understand and to specify the underlying statutory basis for the expungement. Regardless of which type of expungement order is entered, to make an exception to the expungement order thereafter requires a new petition to be filed by the attorney general, the prosecuting agency or “by the person in interest who is the subject of such records.”26 The court may allow inspection of the expunged record “only to those persons and for such purposes named in such petition.”27
Once an expungement order is entered, then “the subject official actions shall be deemed never to have occurred, and the person in interest and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such action ever occurred and that no such record exists with respect to such person.”28 An expungement order can be vacated or modified, after notice and hearing, only for change of conditions or for “a compelling reason to unseal the records.”29
A case for expungement is a case in essence against the records themselves. The court explained in State v. McMahon:30
The procedure prescribed for obtaining or opposing expungement is almost summary in nature and the issues are very narrow in scope. The procedure includes (1) the filing of a motion or petition; (2) notice to the district attorney, the arresting agency, the Oklahoma State Bureau of Investigation, and any other interested person or agency; and, (3) hearing of the petition and objections from the agencies notified. No response to an objection is provided. The focus of the petition, objections, and hearing is on records kept by authority of law.
Moreover, the plaintiff in an expungement case need not prove any harm to make a prima facie case – the existence of an arrest record, and qualification under any of the statutory grounds for expungement, is sufficient to shift the burden to the government to show that the public interest in keeping the records open to the public is greater than the plaintiff’s interest in sealing the records.31
After the hearing has been conducted (or an order approved by all affected agencies has been collected by the plaintiff), the court may enter an order sealing all or any part of the records in question, or may enter an order limiting access to such records.32 Expungement orders do not authorize a destruction of records.33 “For the purposes of this section, sealed materials which are recorded in the same document as unsealed material may be recorded in a separate document, and sealed, then obliterated in the original document.”34 Any sealed document can be destroyed after 10 years.35
When an expungement order is in place, the plaintiff cannot be required by employers, educational institutions, state or local government agencies or officials to “disclose any information contained in sealed records” in an interview or job application.36 However, sealed material can be used at any hearing or trial for impeachment purposes or as evidence of character.37
The past three decades have seen a dramatic shift in the legislative policy related to public access to arrest records. Prior to 1987, expungement of criminal records was nearly nonexistent in Oklahoma. From 1987 until 2000, statutory expungement has allowed the sealing of arrest records in cases in which the guilt of the defendant was never admitted or proved. Since 2000, quite a variety of grounds for a limited expungement – sealing records to the public but leaving them open to law enforcement agencies – have been enacted to allow a defendant to deny that he or she has ever been arrested, even after admitting guilt or even taking a conviction.
ABOUT THE AUTHOR
Orval Edwin Jones graduated from the OU College of Law in 1984 and has been an assistant municipal counselor for the City of Oklahoma City since 1999. He was previously in private practice, an assistant attorney general and general counsel for the Insurance Department. He is a member of the Evidence and Civil Procedure Committee.
1. This article is the personal work product of the author and does not necessarily reflect the policies or positions of the Oklahoma City Office of Municipal Counselor or the City of Oklahoma City.
2. Examples of special expungement statutes include: 22 O.S. §991c (expungement of court records after deferred sentence in district court); 11 O.S. §28-123 (expungement of court records after deferred sentence or successful probation in municipal courts of record); 22 O.S. §60.18 (sealing of certain victim protective order court records from public inspection); 10A O.S. §2-6-109 (expungement of juvenile records not otherwise confidential).
3. State ex rel. Hicks v. Freeman, 1990 OK CR 45, 795 P.2d 110. See also City of Lawton v. Moore, 1993 OK 168, 868 P.2d 690 (criminal court expungement does not include law enforcement records).
4. Parsons v. District Court, 2017 OK 97, ¶¶17, 20, 408 P.3d 586 (citation omitted).
5. In re Adoption of Supreme Court Rules for Expungement of Records, 2005 OK 32, 120 P.3d 861.
6. Okla. Laws 1987, c. 87.
7. United States v. Linn, 513 F.2d 925, 927 (10th Cir. 1975), citing United States v. Dooley, 364 F. Supp. 75 (E.D. Pa. 1973).
8. Id. at 928.
9. Id. at 927.
10. Morrow v. District of Columbia, 417 F.2d 728, 731 (D.C. Cir. 1969).
11. Note, “Criminal Procedure: Expunging the Arrest Record When There Is No Conviction,” 28 Okla. L. Rev. 377, 386 (footnotes omitted).
12. Id. at 386.
13. Okla. Laws 1987, c. 87, §1.
15. Okla. Laws 1997, c. 387, §1.
16. 22 O.S. §19.
17. See Historical Data annotating 22 O.S. §18, most recently Okla. Laws 2017, c 127.
18. 22 O.S. §18(A) (2018 Supp.).
19. Okla. Laws 2016, c. 348, §1.
20. The data set consisted of 518 cases in which the author entered a special or general appearance.
21. 22 O.S. §19(A).
22. Id., §19(B).
23. Id., §19(C).
24. Paragraphs 1-7 and 14 of 22 O.S. §18(A).
25. 22 O.S. §18(D).
26. Id., §19(E).
28. Id., §19(D).
29. Id., §19(L).
30. 1998 OK CIV APP 103, ¶4, 959 P.2d 607 (original emphasis, citation omitted).
31. Hoover v. State, 2001 OK CR 16, 29 P.3d 591. An article, written before these “presumed harm” cases shaped the substantive content of most general expungement orders, contains excellent comments regarding the practical aspects of expungement practice. See Edward D. Hasbrook, “Expungement: The Second-Chance Statutes,” 66 O.B.J. 2503 (July 29, 1995).
32. 22 O.S. §19(C).
33. Id., §19(H).
34. Id., §19(I).
35. Id., §19(K).
36. Id., §19(F).
37. Id., §19(N).
Originally published in the Oklahoma Bar Journal -- OBJ 90 pg. 13 (March 2019)