1 STATE OF OKLAHOMA
2 2nd Session of the 58th Legislature (2022)
3 HOUSE BILL 3316 By: Miller
4
5
6 AS INTRODUCED
7 An Act relating to expungements; amending 22 O.S.
2021, Sections 18 and 19, which relate to the
8 expungement of criminal arrest records; providing for
the automatic sealing of records under certain
9 circumstances; defining term; providing process for
the automatic expungement of certain eligible cases;
10 providing for the filing of expungement petitions and
unsealing of records apart from the automatic
11 expungement process; and providing an effective date.
12
13
14 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
15 SECTION 1. AMENDATORY 22 O.S. 2021, Section 18, is
16 amended to read as follows:
17 Section 18. A. Persons authorized to file a motion for
18 expungement, as provided herein, must be within one of the following
19 categories:
20 1. The person has been acquitted;
21 2. The conviction was reversed with instructions to dismiss by
22 an appellate court of competent jurisdiction, or an appellate court
23 of competent jurisdiction reversed the conviction and the
24 prosecuting agency subsequently dismissed the charge;
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1 3. The factual innocence of the person was established by the
2 use of deoxyribonucleic acid (DNA) evidence subsequent to
3 conviction, including a person who has been released from prison at
4 the time innocence was established;
5 4. The person has received a full pardon by the Governor for
6 the crime for which the person was sentenced;
7 5. The person was arrested and no charges of any type,
8 including charges for an offense different than that for which the
9 person was originally arrested, are filed and the statute of
10 limitations has expired or the prosecuting agency has declined to
11 file charges;
12 6. The person was under eighteen (18) years of age at the time
13 the offense was committed and the person has received a full pardon
14 for the offense;
15 7. The person was charged with one or more misdemeanor or
16 felony crimes, all charges have been dismissed, the person has never
17 been convicted of a felony, no misdemeanor or felony charges are
18 pending against the person and the statute of limitations for
19 refiling the charge or charges has expired or the prosecuting agency
20 confirms that the charge or charges will not be refiled; provided,
21 however, this category shall not apply to charges that have been
22 dismissed following the completion of a deferred judgment or delayed
23 sentence;
24
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1 8. The person was charged with a misdemeanor, the charge was
2 dismissed following the successful completion of a deferred judgment
3 or delayed sentence, the person has never been convicted of a
4 felony, no misdemeanor or felony charges are pending against the
5 person and at least one (1) year has passed since the charge was
6 dismissed;
7 9. The person was charged with a nonviolent felony offense not
8 listed in Section 571 of Title 57 of the Oklahoma Statutes, the
9 charge was dismissed following the successful completion of a
10 deferred judgment or delayed sentence, the person has never been
11 convicted of a felony, no misdemeanor or felony charges are pending
12 against the person and at least five (5) years have passed since the
13 charge was dismissed;
14 10. The person was convicted of a misdemeanor offense, the
15 person was sentenced to a fine of less than Five Hundred One Dollars
16 ($501.00) without a term of imprisonment or a suspended sentence,
17 the fine has been paid or satisfied by time served in lieu of the
18 fine, the person has not been convicted of a felony and no felony or
19 misdemeanor charges are pending against the person;
20 11. The person was convicted of a misdemeanor offense, the
21 person was sentenced to a term of imprisonment, a suspended sentence
22 or a fine in an amount greater than Five Hundred Dollars ($500.00),
23 the person has not been convicted of a felony, no felony or
24 misdemeanor charges are pending against the person and at least five
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1 (5) years have passed since the end of the last misdemeanor
2 sentence;
3 12. The person was convicted of a nonviolent felony offense not
4 listed in Section 571 of Title 57 of the Oklahoma Statutes, the
5 person has not been convicted of any other felony, the person has
6 not been convicted of a separate misdemeanor in the last seven (7)
7 years, no felony or misdemeanor charges are pending against the
8 person and at least five (5) years have passed since the completion
9 of the sentence for the felony conviction;
10 13. The person was convicted of not more than two felony
11 offenses, none of which is a felony offense listed in Section 13.1
12 of Title 21 of the Oklahoma Statutes or any offense that would
13 require the person to register pursuant to the provisions of the Sex
14 Offenders Registration Act, no felony or misdemeanor charges are
15 pending against the person, and at least ten (10) years have passed
16 since the completion of the sentence for the felony conviction;
17 14. The person has been charged or arrested or is the subject
18 of an arrest warrant for a crime that was committed by another
19 person who has appropriated or used the person's name or other
20 identification without the person's consent or authorization; or
21 15. The person was convicted of a nonviolent felony offense not
22 listed in Section 571 of Title 57 of the Oklahoma Statutes which was
23 subsequently reclassified as a misdemeanor under Oklahoma law, the
24 person is not currently serving a sentence for a crime in this state
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1 or another state, at least thirty (30) days have passed since the
2 completion or commutation of the sentence for the crime that was
3 reclassified as a misdemeanor, any restitution ordered by the court
4 to be paid by the person has been satisfied in full, and any
5 treatment program ordered by the court has been successfully
6 completed by the person, including any person who failed a treatment
7 program which resulted in an accelerated or revoked sentence that
8 has since been successfully completed by the person or the person
9 can show successful completion of a treatment program at a later
10 date. Persons seeking an expungement of records under the
11 provisions of this paragraph may utilize the expungement forms
12 provided in Section 2 18a of this act title.
13 B. For purposes of Section 18 et seq. of this title,
14 "expungement" shall mean the sealing of criminal records, as well as
15 any public civil record, involving actions brought by and against
16 the State of Oklahoma arising from the same arrest, transaction or
17 occurrence.
18 C. Beginning two (2) years after the effective date of this act
19 and subject to the availability of funds, individuals with clean
20 slate eligible cases shall be eligible to have their criminal
21 records sealed automatically. For purposes of Section 18 et seq. of
22 this title, "clean slate eligible case" shall mean a case where each
23 conviction within the case is pursuant to paragraphs 1, 2, 3, 5, 6,
24 7, 8, 10, 11, 14 and 15 of subsection A of this section.
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1 D. For purposes of seeking an expungement under the provisions
2 of paragraph 10, 11, 12 or 13 of subsection A of this section,
3 offenses arising out of the same transaction or occurrence shall be
4 treated as one conviction and offense.
5 D. E. Records expunged pursuant to paragraphs 4, 8, 9, 10, 11,
6 12, 13, 14 and 15 of subsection A of this section shall be sealed to
7 the public but not to law enforcement agencies for law enforcement
8 purposes. Records expunged pursuant to paragraphs 8, 9, 10, 11, 12
9 and 13 of subsection A of this section shall be admissible in any
10 subsequent criminal prosecution to prove the existence of a prior
11 conviction or prior deferred judgment without the necessity of a
12 court order requesting the unsealing of the records. Records
13 expunged pursuant to paragraph 4, 6, 12 or 13 of subsection A of
14 this section may also include the sealing of Pardon and Parole Board
15 records related to an application for a pardon. Such records shall
16 be sealed to the public but not to the Pardon and Parole Board.
17 SECTION 2. AMENDATORY 22 O.S. 2021, Section 19, is
18 amended to read as follows:
19 Section 19. A. Any person qualified under Section 18 of this
20 title may petition the district court of the district in which the
21 arrest information pertaining to the person is located for the
22 sealing of all or any part of the record, except basic
23 identification information.
24
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1 B. The process for the automatic expungement of a clean slate
2 eligible case as defined in subsection C of Section 18 of this title
3 is as follows:
4 1. On a monthly basis, the Oklahoma State Bureau of
5 Investigation shall identify cases which are clean slate eligible;
6 2. The Bureau shall, on a monthly basis, transmit a list of
7 clean slate eligible cases to the prosecuting agency and the
8 arresting agency;
9 3. The prosecuting agency, arresting agency, and the Bureau
10 may, no later than thirty-five (35) days from the day on which the
11 notice described in paragraph 2 of this subsection is transmitted,
12 object to an automatic expungement for any of the following reasons:
13 a. after reviewing the agency record, the agency believes
14 the case does not meet the definition of a clean slate
15 eligible case,
16 b. the individual has not paid court-ordered restitution
17 to the victim, or
18 c. the agency has a reasonable belief, grounded in
19 supporting facts, that an individual with a clean
20 slate eligible case is continuing to engage in
21 criminal activity within or outside the state;
22 4. If an agency identified in paragraph 3 of this subsection
23 objects for a reason described in paragraph 3 of this subsection
24 within thirty-five (35) days of the day on which the notice
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1 described in paragraph 3 of this subsection is transmitted, the
2 record shall not be expunged;
3 5. If thirty-five (35) days pass from the day on which the
4 notice described in paragraph 3 of this subsection is sent without
5 an objection for a reason described in paragraph 3 of this
6 subsection, the Bureau shall seal the record and transmit a notice
7 to the court clerk and law enforcement agencies to seal the record;
8 and
9 6. The Bureau shall make rules to govern the process for
10 automatic expungement of records for a clean slate eligible case in
11 accordance with this subsection.
12 C. Nothing in this section precludes an individual from filing
13 a petition for expungement of records that are eligible for
14 automatic expungement under subsection C of Section 18 of this title
15 if an automatic expungement has not occurred pursuant to subsection
16 B of this section.
17 D. An automatic expungement granted under subsection B of this
18 section does not preclude a person from requesting the unsealing of
19 records in accordance with subsection O of this section.
20 E. Upon the filing of a petition or entering of a court order
21 as prescribed in subsection A of this section, the court shall set a
22 date for a hearing and shall provide thirty (30) days of notice of
23 the hearing to the prosecuting agency, the arresting agency, the
24 Oklahoma State Bureau of Investigation, and any other person or
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1 agency whom the court has reason to believe may have relevant
2 information related to the sealing of such record.
3 C. F. Upon a finding that the harm to privacy of the person in
4 interest or dangers of unwarranted adverse consequences outweigh the
5 public interest in retaining the records, the court may order such
6 records, or any part thereof except basic identification
7 information, to be sealed. If the court finds that neither sealing
8 of the records nor maintaining of the records unsealed by the agency
9 would serve the ends of justice, the court may enter an appropriate
10 order limiting access to such records.
11 Any order entered under this subsection shall specify those
12 agencies to which such order shall apply. Any order entered
13 pursuant to this subsection may be appealed by the petitioner, the
14 prosecuting agency, the arresting agency, or the Oklahoma State
15 Bureau of Investigation to the Oklahoma Supreme Court in accordance
16 with the rules of the Oklahoma Supreme Court. In all such appeals,
17 the Oklahoma State Bureau of Investigation is a necessary party and
18 must be given notice of the appellate proceedings.
19 D. G. Upon the entry of an order to seal the records, or any
20 part thereof, or upon an automatic expungement described in
21 subsection B of this section, the subject official actions shall be
22 deemed never to have occurred, and the person in interest and all
23 criminal justice agencies may properly reply, upon any inquiry in
24
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1 the matter, that no such action ever occurred and that no such
2 record exists with respect to such person.
3 E. H. Inspection of the records included in the order may
4 thereafter be permitted by the court only upon petition by the
5 person in interest who is the subject of such records, the Attorney
6 General, or by the prosecuting agency and only to those persons and
7 for such purposes named in such petition.
8 F. I. Employers, educational institutions, state and local
9 government agencies, officials, and employees shall not, in any
10 application or interview or otherwise, require an applicant to
11 disclose any information contained in sealed records. An applicant
12 need not, in answer to any question concerning arrest and criminal
13 records, provide information that has been sealed, including any
14 reference to or information concerning such sealed information and
15 may state that no such action has ever occurred. Such an
16 application may not be denied solely because of the refusal of the
17 applicant to disclose arrest and criminal records information that
18 has been sealed.
19 G. J. All arrest and criminal records information existing
20 prior to the effective date of this section, except basic
21 identification information, is also subject to sealing in accordance
22 with subsection C F of this section.
23 H. K. Nothing in this section shall be construed to authorize
24 the physical destruction of any criminal justice records.
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1 I. L. For the purposes of this section, sealed materials which
2 are recorded in the same document as unsealed material may be
3 recorded in a separate document, and sealed, then obliterated in the
4 original document.
5 J. M. For the purposes of this section, district court index
6 reference of sealed material shall be destroyed, removed or
7 obliterated.
8 K. N. Any record ordered to be sealed pursuant to this section,
9 if not unsealed within ten (10) years of the expungement order, may
10 be obliterated or destroyed at the end of the ten-year period.
11 L. O. Subsequent to records being sealed as provided herein,
12 the prosecuting agency, the arresting agency, the Oklahoma State
13 Bureau of Investigation, or other interested person or agency may
14 petition the court for an order unsealing said records. Upon filing
15 of a petition the court shall set a date for hearing, which hearing
16 may be closed at the discretion of the court, and shall provide
17 thirty (30) days of notice to all interested parties. If, upon
18 hearing, the court determines there has been a change of conditions
19 or that there is a compelling reason to unseal the records, the
20 court may order all or a portion of the records unsealed.
21 M. P. Nothing herein shall prohibit the introduction of
22 evidence regarding actions sealed pursuant to the provisions of this
23 section at any hearing or trial for purposes of impeaching the
24
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1 credibility of a witness or as evidence of character testimony
2 pursuant to Section 2608 of Title 12 of the Oklahoma Statutes.
3 N. Q. If a person qualifies for an expungement under the
4 provisions of paragraph 3 of subsection A of Section 18 of this
5 title and said petition for expungement is granted by the court, the
6 court shall order the reimbursement of all filing fees and court
7 costs incurred by th