Questions and Answers

The Privacy Blog of Michael A. Risley, Attorney

Oklahoma Supreme Court Allows Immediate Drug Court Expungements

We are pleased to announce that the Oklahoma Supreme Court has authorized immediate expungements for people who have:

  1. Successfully completed any Oklahoma Drug Court program,
  2. Afterwards, had their charges dismissed by the State.;

If those two items apply to you, give us a call at 405.801.2116, or get in touch, to talk to an attorney about the immediate expungement of your drug court charges. It is our strongest recommendation that people with drug court dismissals take advantage of this opportunity, while they still can.

For those who are interested in more detail, here is some background: the Oklahoma Supreme Court handed down a new case right before Christmas, D.A. v. State ex rel. Oklahoma State Bureau of Investigation. In D.A., the Court was asked to decide whether a drug court case qualified for expungement as a "dismissal", which can be immediately expunged under 22 O.S. §18(7); or as a "delayed sentence", which cannot be expunged until five years from the completion of drug court, per 22 O.S. §18(9).

OSBI argued that a drug court case counts as a "delayed sentence", because drug court participants enter a plea to a negotiated sentence, which is delayed during their participation in drug court. If they successfully complete drug court, then the charges are dismissed, but if they fail out of drug court, the previously negotiated sentence is imposed. OSBI also pointed out, correctly, that the Oklahoma Supreme Court and the Oklahoma Court of Criminal Appeals have found drug courts to be equivalent to deferred sentences on at least three different occasions, most recently in 2013.

Petitioner D.A. argued that because no "sentence" was actually imposed after the completion of drug court - only the dismissal - then a drug court case cannot be a "delayed sentence", but is actually a straight dismissal under §18(7).

The Court ultimately disagreed with both parties, and fashioned its own remedy. The Court found that §18 does not explicitly mention "drug courts, the unique drug court process, drug court records, or drug court dismissals after successfully completing drug court", despite being amended almost twenty times since it's creation in 1987, and despite being amended several times since the creation of Drug Courts in Oklahoma.

Therefore, the Court (surprisingly) decided that the Legislature "did not intend to include drug court dismissals within §18's terms", and fabricated it's own expungement remedy out of whole cloth. Per the Court's conclusion, it appears that the only elements necessary to qualify for an expungement under D.A.'s new common law remedy are:

  1. That the person has successfully completed an Oklahoma Drug Court program,
  2. and that afterwards, the person has had their charges dismissed by the State.

There appears to be one big caveat here: if a person successfully completes Drug Court, but negotiated a suspended or deferred sentence upon completion of drug court, they will not qualify for expungement under D.A., but will qualify under the matching suspended/deferred provisions of §18.

While I agree with the outcome of the case, the rationale is troubling, for two reasons: first, there is no such thing as an expungement without statutory authority. The Oklahoma Open Records Act explicitly states that Court records are public records, which cannot be sealed without statutory authority. See 51 O.S. §24A.30. Notably, this means that common law remedies - such as D.A. - cannot be used to expunge court records.

Second, the Court simply did not need to go as far as they did, and fashion an expungement remedy out nothing. Petitioner's argument - that without a "sentence" being imposed, a drug court completion cannot be a "delayed sentence" - is sufficient to authorize expungement of drug court dismissals under §18(7).

By creating a new remedy, without statutory authority, the Court will run into problems with the Oklahoma Open Records Act, and may trigger a reaction by the Legislature. In the meantime, while the case is still good law, it is my strongest recommendation that people who have drug court dismissals take advantage the Court's decision and have their cases removed, as soon as possible.

Thanks for reading,

Michael Risley | Wednesday, January 09, 2019 | Go Back