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HB2397 signed by Governor, Oklahoma expungement laws to be amended November 1st 2016

HB2397, the expungement amendments bill written by Michael A. Risley, was signed into law today by Governor Mary Fallin. It had previously passed the House 88-0 and the Senate 45-0. 

It will come into effect on Nov. 1st, 2016, and the final version of the bill can be read here
It will do the following:

  • Allow for the immediate expungement of misdemeanor fines (less than $501);
  • Allow expungement of two felony convictions, after 20 years and a Governor's Pardon;
  • Allow for the expungement of civil records relating to the underlying criminal arrest;
  • Limit SSN & DOB records on court documents (going forward, not retroactive);
  • Make DNA from expunged records automatically inadmissible in later prosecutions;
  • Require notification of the "Prosecuting Agency" instead of the "District Attorney";
  • Misdemeanor convictions will no longer disqualify deferred sentence expungements;
  • Fix expungement wait times, so that eligibility is proportional to the sentence;

Give us a call at 405.801.2116 to see if you qualify under the new law, or get in touch.

On behalf of everyone in Oklahoma who will be able to move forward with a fresh start, and on behalf of everyone in this office, we are deeply humbled and thankful for the efforts of the following individuals:

  • Representative Travis Dunlap (R-Bartlesville), for being the lead sponsor of HB2397;
  • Senator Anthony Sykes (R-Moore), for co-sponsoring HB2397 in the Senate;
  • Representatives Sherrer, Hoskin, and Lepak for co-sponsoring HB2397 in the House;
  • Representative Kevin Calvey, (R-Oklahoma City), for the civil records amendment;
  • The Oklahoma State Bureau of Investigation, for their feedback and the $501 fine limit;
  • The Oklahoma County District Attorney (Civil Division), for their feedback;
  • The Tulsa County District Attorney (Civil Division), for considering the bill as well;
  • To the Conference Committee (Senators Sykes, Crain, Holt, Dahm, Treat, Matthews, and Pittman) for the DNA and DOB/SSN amendments;

The details on HB2397:

1. It will allow for the immediate expungement of misdemeanor fines (less than $501)

Under current Oklahoma law, if you paid a public intoxication ticket on January 1st, 2016, you would have to wait until January 1st, 2026 before you could have that expunged. That is entirely too long, especially considering the alternative: if you were savvy enough to take a six month deferred sentence on the same crime, you could have it expunged on July 1st, 2017. The wait time until expungement should reflect the seriousness of the crime, and no one thinks that a misdemeanor fine is serious enough to warrant waiting a decade for an expungement. This fixes that issue. 

As an aside, one of the other amendments enacted by HB2397 will attach a five year waiting period to a misdemeanor which reviewed a fine larger than $501, and which reflects a more serious misdemeanor.

2. It will allow expungement of two non-violent felony convictions, after 20 years and a Governor's Pardon

Under the current law, you can expunge one non-violent felony conviction, if it has been 10 years from the conviction, and you have been pardoned by the Governor. If you have more than one felony conviction, no matter how long it has been or how much you deserve an expungement, you are unexpungeable forever. 

We wanted to open eligibility for those with two felony convictions, while simultaneously rewarding those with less criminal involvement - essentially, if you learn your lesson after the first case, you only have to wait 10 years. If it takes two non-violent felonies, then the wait is 20 years.

3. It will allow expungement of civil records relating to the underlying criminal arrest;

Experienced expungement attorneys in Oklahoma already know workarounds to get civil cases expunged, if they were related to an underlying criminal case. However, it was not explicit in the language of the law that this was allowed. That is now fixed, and it should help less experienced expungement attorneys do a good job for their clients.

4. Misdemeanor convictions will no longer disqualify deferred sentence expungements;

This is best explained with an example: assume you receive a DUI and a ticket for running a stop sign. On the DUI you plea bargain for a one year deferred sentence, because you want to expunge it as soon as possible. On the ticket, you just take a fine because it doesn't matter. As addressed in point (1), under the old law, the ticket is unexpungeable for a decade, and, the ticket would block the expungement of the DUI as well! This is exceptionally frustrating, because no one cares (not even law enforcement) about misdemeanor tickets. Under HB2397, this is fixed, and you can expunge a deferred, even if there is a misdemeanor conviction on your record.

5. It will require notification of the "Prosecuting Agency" instead of the "District Attorney";

This is a point for law enforcement. Under the old law, you were required to notify the District Attorney in every expungement, even if it was actually the City Attorney or the Attorney General who actually prosecuted the underlying criminal case. Now, the DA's won't have their time wasted, and expungement attorneys wont have to notify unnecessary parties.

6. It will make expunged DNA records automatically inadmissible in later prosecutions;

One of the other bills passed during the 2016 Legislative session involved DNA collection. As of November 1st, 2016, DNA will now be collected at arrest, instead of at conviction. To protect people's privacy, DNA records are supposed to be expunged if the arrest doesn't go anywhere - if there is an acquittal, or if charges are dropped, or if nothing is filed, etc. 

However, to be double sure that the public's privacy is protected, expunged DNA records are now also inadmissible, as a matter of law, in future prosecutions. Even if the State accidentally retained DNA information, they can't use it against you.

7. It will limit SSN & DOB records from court documents, going forward;

Lots of people are familiar with the fact that their full name, SSN, DOB, and address is available on www.OSCN.net, the Oklahoma Supreme Court's website for court records. Nothing could be done, this session, to fix the backlog of personal information that exists online - those still have to be expunged. However, going forward, SSN and DOB information will be limited online.

8. Expungement wait times will be fixed, so that eligibility is proportional to the sentence

This is best demonstrated with a table. Under the old law, the wait time from arrest to expungement is as follows (arranged by severity of sentence - the worse the sentence, the lower it is on the list. Time computation includes a "standard" sentence.):

  • Misdemeanor Fines: 10 Years
  • Misdemeanor Deferred Sentence: 2 Years
  • Misdemeanor Suspended/Jail Sentence: 11 Years
  • Felony Deferred Sentence: 15 Years
  • Felony Suspended/Jail Sentence: 10 Years and a Governor's Pardon

We've already discussed how ridiculous it was that a misdemeanor fine couldn't be expunged for ten years. As you can also see from the table, the worst sentence possible - a felony conviction (suspended/jail) - has less of a wait than a felony deferred, which is supposed to be a lighter sentence. That doesn't make sense. Under HB2397, the wait time to an expungement will now scale properly, based on the seriousness of the the sentence:

  • Misdemeanor Fines: Immediate
  • Misdemeanor Deferred Sentence: 2 Years
  • Misdemeanor Suspended/Jail Sentence: 6 Years
  • Felony Deferred Sentence: 10 Years
  • Felony Suspended/Jail Sentence: 10 Years and a Governor's Pardon

That's it! We are, again, very thankful to our colleagues in law enforcement and the Legislature for their feedback and hard work in making Oklahoma's future brighter, even on a small thing like expungements. 

If you have any questions or concerns, or if you want to know if you will qualify for expungement under HB2397, give us a call at at 405.801.2116, or get in touch.

Thanks for reading,
Michael


Michael Risley | Tuesday, June 07, 2016 | Go Back