Expungement of Criminal Records – General – Oklahoma
1. What is expungement?
Expungement is the process by which a record of criminal conviction and/or arrest are removed by order of the court. The expunged records are deemed not to exist and the person who is the subject of the records may deny their existence, however, they may be sued to impeach them or as character evidence in future proceedings.
2. Do the records just disappear?
No. 22 O.S § 991-c, requires court clerk’s offices to delete the defendant’s name from the docket sheet, expunge the public filing of the charge, and keep a separate and confidential index of the case. In most court clerk’s offices, the process includes the removal of the defendant’s file from the main file area. Additionally, the court information will be redacted from the clerk’s computer and also from any public access website such as the Oklahoma Supreme Court Network (OSCN). As a result, when the defendant’s name is searched, either at the courthouse or by computer, no information regarding the expunged case will be found. However, if the defendant’s case number is searched, some information regarding the case may still be available. In most cases, any information specific to the defendant remains undiscoverable. However, if the defendant paid for fines and/or costs, the defendant’s name may appear as the person who made the payment.
3. What records may be expunged?
While a §991c expungement may seal an entire court record, it does not produce the same effect with respect to a defendant’s criminal history record with the Oklahoma State Bureau of Investigation (OSBI). Because OSBI records contain not only arrests, but also dispositions of those arrests, a §991c expungement will have no effect on a defendant’s arrest information. It will however affect the information given to the public regarding the disposition. For example, if a defendant is arrested for Grand Larceny and is subsequently given a three year deferred sentence, a §991c expungement will delete the information regarding the probation. As such, the arrest will still appear on the record, but the disposition is changed from “pled guilty, three year deferred sentence” to “pled not guilty, case dismissed.”
In order to expunge arrest records, including arrests contained in the criminal history records at the OSBI, a petition for expungement may be filed under 22 O.S. §§ 18 and 19 .
4. Who is eligible for Expungement?
1) 22 O.S. §991c allows for the expungement of a plea of guilt or no contest after the successful completion of a deferred sentence. O.S. § 991c does not apply to defendants who have been previously convicted of a felony offense unless this prohibition is waived by the court. It also does not apply to defendants found guilty or who plead guilty or nolo contendere to a sex offense required to be registered under the Sex Offenders Registration Act. The defendant must not have not received a deferred judgment for a felony offense within the ten (10) years previous to the commission of the
2) 22 O.S. §18 mandates that a defendant satisfy at least one of ten criteria. The requirements under §18 include: 1. The person has been acquitted;
2. 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
3. The factual innocence of the person was established by
the use of deoxyribonucleic acid (DNA) evidence subsequent
4. 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. 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 or
charges are dismissed within one (1) year of the arrest, or
all charges are dismissed on the merits;
6. The statute of limitations on the offense had expired
and no charges were filed;
7. 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;
8. The offense was a misdemeanor, the person has not been
convicted of any other misdemeanor or felony, no felony or
misdemeanor charges are pending against the person, and at
least ten (10) years have passed since the judgment was
9. The offense was a nonviolent felony, 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 misdemeanor or
felony, no felony or misdemeanor charges are pending
against the person, and at least ten (10) years have passed
since the conviction; or
10. 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
3) To expunge juvenile court records under 10 O.S. § 7307-1.8, a person who reaches the age of 21, not been arrested for any adult criminal offense and no charge, indictment, or information has been filed or is pending against the person at the time of the petition for an expungement; is not been subject to any deferred prosecution or deferred sentence, and has not been convicted of any criminal offense; and all court costs, restitution, fines and other court-ordered requirements have been completed for all juvenile proceedings.
4) Under 10 O.S. § 7306-1.1, if the accused person sought to be tried as an adult is certified as a child to the juvenile division of the district court, then all adult court records relative to the accused person and this charge must be expunged and any mention of the accused person must be removed from public record. This expungement is automatic as a matter of law.
5) Under 10 O.S. § 7306-2.10, a court may order a youthful offender discharged from the supervision or custody of the Department of Juvenile Justice without a court judgment of guilt, and order the verdict or plea of guilty or plea of nolo contendere expunged from the record as provided in § 991c if the court finds that the youthful offender has reasonably completed the rehabilitation plan and objectives and that such dismissal will not jeopardize public safety. Upon the motion of the youthful offender and three years after such discharge and dismissal, the court may, in addition, order any law enforcement agency to produce all files and records pertaining to the arrest and conviction of the youthful offender and must order the clerk of the court to destroy the entire file and record of the case, including docket sheets, index entries, court records, summonses, warrants or records in the office of the clerk or which have been produced by a law enforcement agency in which the name of the youthful offender is mentioned. The court may order probation officers and counselors of the Office of Juvenile Affairs to destroy all records, reports, and social and clinical studies relating to the youthful offender that are in the possession of the Office of Juvenile Affairs, except when the documents are necessary to maintain state or federal funding.
6) In the case of violation of criminal municipal ordinances, 11 O.S. § 28-123 provides that upon completion of the probation term following a deferred sentence, the defendant shall be discharged without a court judgment of guilt, and the verdict, judgment of guilty or plea of guilty shall be expunged from the record and said charge be dismissed with prejudice to any further action. This expungement is automatic as a matter of law.
7) 63 O.S. § 2-410 allows first-time drug offenders who successfully complete all terms of a deferred sentence to be discharged and have proceedings against them dismissed. Discharge and dismissal under this section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime. Discharge and dismissal under this section may occur only once with respect to any person. While this section doesn’t enumerate procedures taken to expunge records, the statute states that, “Any expunged arrest or conviction shall not thereafter be regarded as an arrest or conviction for purposes of employment, civil rights, or any statute, regulation, license, questionnaire or any other public or private purpose; provided, that, any such plea of guilty or finding of guilt shall constitute a conviction of the offense for the purpose of this act or any other criminal statute under which the existence of a prior conviction is relevant.” This expungement is automatic as a matter of law.
5. How do I get records expunged?
For expungement under 10 O.S. § 7307-1.8, upon the filing of a petition for expungement of a juvenile court record, the court will set a date for a hearing, which may be closed at the court’s discretion, and will provide a thirty (30) days’ notice of the hearing to the district attorney, the Department of Juvenile Justice, the Oklahoma State Bureau of Investigation, and any other person or agency whom the court has reason to believe may have relevant information related to the expungement of any record.
Upon a finding that the harm to privacy of the person in interest or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records, the court may order the records, or any part thereof except basic identification information, to be expunged. If the court finds that neither expungement of the records nor maintaining the records unsealed by the agency would serve the ends of justice, the court may enter an appropriate order limiting access to the records. Any order entered pursuant to the provisions of this subsection shall specify those agencies to which the court order will apply
For expungement under 22 O.S. §18, the procedures under §19 must be followed. Section 19 states that the expungement petition is to be filed in the district court where the arrest information is located. Because the records of various state agencies, including OSBI and DOC can be obtained from a number of different sites, the physical locations of these agencies should not be considered in determining where to file your petition. Instead, your petition should be filed in the county where the local arresting agency is located. Properly filing the petition in this manner will also alleviate jurisdictional concerns.
In some counties, a Motion to Expunge must be filed in the criminal case, if one exists. However in other counties, including Oklahoma County, an expungement petition must be filed as a civil case. Before you prepare your paperwork, it is best to consult the court’s administrative rules or the appropriate court clerk’s office to determine the correct filing procedure. You should also research the court files to ensure that all applicable case numbers are included in your expungement.
When preparing an expungement request, you should include detailed information about your arrest including the date of arrest, all charges at arrest, all charges eventually filed, any amendments to the case, final disposition of the charges, and dates of both pleas and dismissals. Because the charges at arrest may be different than the charges that were actually filed, you need to consider the importance of running your OSBI criminal history before you prepare an expungement motion or petition.
Once your motion or petition has been filed, notice must be sent to the appropriate parties. Title 22 O.S. §19 requires that at least thirty days notice be provided to the district attorney, the arresting agency, and the OSBI. The amount of notice is important because it allows the law enforcement agencies the time necessary to review your client’s arrest record and determine his or her eligibility for expungement. Because timed notice is required by the statute, you should try to set your hearings at least 45 days after filing. This amount of time should be adequate for mail delivery as well as any internal mail procedures within the individual agencies. You should also consider sending copies of your expungement request by certified mail, return receipt requested to alleviate any notice concerns by the judge. You will also need to determine if any other agency has your arrest information and serve them with a copy of your expungement. Other agencies that may maintain such records include the Department of Corrections (DOC) or Department of Public Safety (DPS). Realize the DPS records can only be sealed if the case is over ten years old and there is no other conviction during that time period. Driver’s license revocations cannot be expunged because they are civil in nature and therefore do not fall under the criminal expungement statutes. However, you will not be required to serve notice to the Federal Bureau of Investigation (FBI). Because Oklahoma is a “sole reporting state,” all amendments to FBI records must be channeled through OSBI. Therefore, notice to OSBI is, in effect, notice to the FBI. Once OSBI receives the necessary expungement orders, the bureau forwards the information to the FBI who then makes the necessary amendments to their records.
Once you have received the proofs of service from each agency, prepare an Affidavit of Service by Mail and attach the original domestic return receipts, or green cards, and file the documentation with the court. Keep a copy of the affidavit and its attachments for your file because the original papers may not be placed in the court file by the day of your hearing.
Another consideration in the service of your documentation is whether or not to include a proposed order. Because the majority of law enforcement agencies will choose not to appear at a hearing if they have no objection to the expungement, it will save you time and effort to serve them with a proposed order before the hearing date. If you also attach an individual signature page for each agency representative, you will benefit from the lack of footwork that otherwise would occur. It will also alleviate concerns by judges who require signatures from each agency and will prevent any misunderstandings between yourself and the affected agencies. Otherwise, you may find yourself with the added time and expense of preparing an Order Nunc Pro Tunc.
Whether or not you prepare the order before or after the hearing, certain pertinent information must be included. An example of an order can be found on the Internet at 1) http://my.okbar.org/ or 2) www.oba-net.org, File Library, Criminal Law Forms. Specific facts including the date of arrest, individual charges, and all case numbers should be included. Because §19 provides that basic identification information cannot be sealed, the order should not make any broad general statements which expunge “all” information in your client’s record. Furthermore, none of the expungement statutes allow for the destruction of evidence or the return of any evidence, fingerprint cards, mug shots, or any other information to you or your client. If you include such information, you can rest assured that you will encounter objections to your expungement order.
When you appear for your hearing, you may or may not have opposition to your expungement. If there are no objections from the law enforcement agencies, you will probably have received notice either by phone, mail, or through the return of a signature page to your proposed order. If you have not received such notice, you may want to contact the involved parties to determine their position. Once you obtain the signatures of the involved parties and the judge, file the order with the court clerk’s office and have several copies certified. Mail a certified copy to all parties, including your client. You must send a certified copy of the order to each agency before your client’s record can be amended. Because the court clerk’s office will seal your client’s file as soon as you file your order, obtaining certified copies at a later date is most difficult. To ensure proper service, you also may want to send the certified copies by certified mail, return receipt requested.
The above-mentioned procedures represent how expungements proceed in the majority of cases. Most defendants, if they meet one of the conditions of §18, will be able to obtain an expungement without an objection from the law enforcement agencies. However, every defendant who qualifies for an arrest record expungement may not be entitled to such relief. Section 19 allows for an objection by law enforcement if public policy concerns in retaining the records outweigh your client’s privacy interests in having them sealed. Recent examples of cases where public policy objections have been filed by law enforcement agencies include defendants who were medical personnel with drug arrests or teachers with arrests for sexual offenses with children. Agencies may also file a public policy objection on a defendant who has numerous other contacts with police.
If you encounter objections to your expungement and lose the hearing, you need to be aware of another recent legislative change in expungement law. As of September 1, 2002, §19 was amended to move the appellate process for expungements from the Oklahoma Court of Criminal Appeals to the Oklahoma Supreme Court. The amendments also require that notice of appeals be served on the OSBI and allow for any party, not just the defendant, to appeal a court’s decision. Therefore, the recent case decisions by the Court of Criminal Appeals, which outlined certain appellate procedures, need to be considered in light of the new legislation.
In conclusion, it is most important to remember the distinction between §991c, which allows for the expunction of a plea of guilt or no contest, and §18 which allows for the expunction of arrest records.