Sentencing in Oklahoma 9th Edition

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    Chapter 4A. Expungement

    The Oklahoma Statutes allow certain persons to seek judicial expungement of records of criminal arrest(s) or conviction(s). In 2022, the Legislature again expanded the eligibility requirements for expungement of criminal records and, beginning in 2025, will implement a “clean slate” program providing for automatic identification of certain criminal records subject to expungement.1 Expungement is the sealing of criminal arrest and/or conviction records, and public civil records of actions brought by and against the State arising from an arrest, transaction or occurrence.2 Perhaps more importantly, once the records are expunged by a court order, the official actions shown by those records are deemed never to have occurred, and both the person and all agencies in possession of the sealed record may properly respond to any inquiry concerning those official actions that no action occurred and that no such record exists with respect to the person.3

    The judicial expungement procedure involves filing a motion or petition for expungement, notice and order setting a hearing, and final dispositional and expungement orders. Parties may utilize the forms provided in the statute. Detailed versions of these forms are included here.

    1. Persons eligible to seek expungement. The person seeking expungement:
      1. was arrested and no charges are filed and the statute of limitations has expired, or the prosecuting agency has declined to file any charges;
      2. was arrested or charged, or is the subject of an arrest warrant for a crime that was committed by someone who appropriated or used the person’s name or identification without the person’s consent or authorization;
      3. was arrested, charged, or convicted of a prostitution-related offense committed as a result of having been a victim of human trafficking;4
      4. was charged with misdemeanor or felony crimes, but all charges have been dismissed, the person has never been convicted of a felony, no charges are pending, and the limitations period for refiling the charge or charges has expired or the DA confirms that no charges will be refiled; provided, this shall not apply to charges dismissed upon completion of a deferred judgment or delayed sentence;
      5. was acquitted;
      6. was convicted, but:
        1. was proven factually innocent through DNA after conviction, even after release from prison;
        2. an appellate court:
          1. reversed the conviction with instructions to dismiss; 
          2. reversed the conviction, and the DA dismissed the charge;
      7. has received a full pardon;
      8. was charged with a misdemeanor, the charge was dismissed upon completion of a deferred judgment or delayed sentence, the person has never been convicted of a felony, no charges are pending, and at least 1 year has passed since the charge was dismissed;
      9. was charged with a non-571 felony, the charge was dismissed upon completion of a deferred judgment or delayed sentence, the person has never been convicted of a felony, no charges are pending and at least 5 years have passed since the charge was dismissed;
      10. was convicted of a misdemeanor, sentenced to a fine of less than $501.00, without a term of imprisonment or a suspended sentence, the fine has been paid or satisfied by time served in lieu of the fine, the person has not been convicted of a felony, and no charges are pending;
      11. was convicted of a misdemeanor, sentenced to a term of imprisonment, a suspended sentence, or fine greater than $500.00, has not been convicted of a felony, no charges are pending, and at least 5 years have passed since the end of the last misdemeanor sentence;
      12. was convicted of a non-571 felony, and has not been convicted of any other felony, has not been convicted of a separate misdemeanor in the last 7 years, no charges are pending, and at least 5 years have passed since the completion of the sentence for the felony conviction;
      13. was convicted of not more than two non-571, non-85% felonies, nor any crime requiring sex offender registration, no charges are pending, and at least 10 years have passed since the completion of the sentence(s);
      14. was charged with not more than two non-85%, non-Sex Offender-registerable felonies and the charges were dismissed following the successful completion of a deferred judgment or delayed sentence; no felony or misdemeanor charges are pending, and at least ten (10) years have passed since the charges were dismissed;
      15. was convicted of a non-571 offense which was subsequently reclassified as a misdemeanor, is not currently serving a criminal sentence in this or another State, at least 30 days have passed since completion or commutation of the sentence for the reclassified offense, any restitution ordered by the court has been paid, any treatment program ordered by the court has been completed, including an initial failure in a treatment program which resulted in an accelerated or revoked sentence that has since been successfully completed by the person (or the person can show successful completion of a treatment program at a later date).5
    2. Transactional in some cases. Expungement of records involving convictions for misdemeanors and non-571 felonies (see 22.1.9-22.1.12) includes all offenses arising out of a transaction or occurrence.6
    3. Some records are not sealed from law enforcement. Records of arrest and charges that resulted in convictions for misdemeanors, non-571 felonies, felonies reclassified as misdemeanors, or which were the subject of a full pardon, or were dismissed upon completion of a deferred or delayed sentence, are sealed from the public but not law enforcement agencies for law enforcement purposes.7 
    4. Deferred judgments are admissible as prior convictions. Records of arrest and charges that resulted in convictions, or which were dismissed upon completion of a deferred judgment, remain admissible in a subsequent criminal prosecution to prove the existence of a prior conviction or prior deferred judgment, without the need for a court order requiring unsealing the records.8 
    5. Expungement of some pardon and parole records. Records expunged in cases involving full pardons or non-571 felonies may also include Pardon and Parole Board records related to application for a pardon. Such records shall be sealed to the public but not to the Pardon and Parole Board.9
    6. Venue of expungement. A person eligible for expungement may file a petition the district court in which the arrest and/or conviction information is located, requested that all or any part of a criminal record, except basic identification information, be sealed.10
    7. Notice to agencies. The court must provide 30 days notice of a scheduled hearing on a petition for expungement to the prosecuting DA, the arresting agency, the OSBI, and any other person or agency whom the court has reason to believe may have relevant information related to the sealing of such record.11
    8. Legal standard for expungement. The court may order expungement if it finds that harm to the person’s privacy or dangers of unwarranted adverse consequences outweigh the public interest in keeping the records unsealed.12 
    9. Scope of remedy. The court may order all or part of the arrest or conviction records sealed.13 If the court finds that neither complete sealing of the records nor maintaining the records publicly serves the ends of justice, the court may order limited access to the records.14 An order of expungement under this act does not authorized physical destruction of any record.15
      1. Expunged material recorded in the same document as public material may be recorded in a separate document, and sealed, then obliterated from the public document. However, the district court index reference of sealed material shall be destroyed, removed, or obliterated. Any expunged record, if not unsealed within 10 years of the expungement order, may be obliterated or destroyed.16
      2. The order must specify the agencies to which the expungement of records applies.Inspection of expunged records may be permitted by the court only upon petition by the person, the Attorney General, or the DA for the reasons permitted by statute.17
    10. Special rules for employment applicants. Employers, educational institutions, State and local government agencies, officials, and employees shall not, in any application, interview, or otherwise, require the person to disclose information contained in expunged records. As an applicant for employment, the person is not required, in answer to any question concerning arrest and criminal records, to provide expunged information, and may state that no such action ever occurred. No application for employment may be denied solely because an applicant did not disclose arrest and criminal information that has been expunged. However, evidence of “actions sealed pursuant to” the expungement statutes may be introduced at “any hearing or trial” to impeach the person’s credibility.18
    11. Rights to appeal an order of expungement. The person and any agency affected by an order of expungement may appeal to the Oklahoma Supreme Court. The OSBI is a necessary party to all such appeals and must be given notice of the appeal proceedings.19
    12. Petition to unseal expunged records. The DA, OSBI, or other “interested person or agency” can petition the court to unseal expunged records. At least 30 days notice to all interested parties must be given before the scheduled hearing on a petition to unseal. The court may order all or part of an expunged record unsealed if it finds either a change of conditions or a compelling reason to unseal the records.20
    13. Clean Slate 2025. Beginning in 2025, “clean slate” records may be sealed automatically. Clean slate eligible cases are those in which each charge meets the requirements of subsections 1, 2, 3, 5, 6, 7, 8, 10, 11, 14 or 15 of 22 O.S.2021, § 18; OSBI will identify eligible cases monthly, and determine whether the individuals meet other eligibility requirements such as paid restitution, and not currently engaged in criminal activity. Notices will be sent to the interested agencies of any objections to automatic expungement received and judicially determined pursuant to rules established by the Oklahoma Supreme Court.21

    References

    1. See O.S.L.2022, §§ 50, 143, amending 22 O.S.2021, §§ 18, 19. ↩︎
    2. 22 O.S.2021, § 18(B) ↩︎
    3. 22 O.S.2021, § 19(D) ↩︎
    4. The expungement order must state that expungement is based on the person’s being a victim of human trafficking. Records expunged on this ground are sealed from the public but not law enforcement agencies for law enforcement purposes. ↩︎
    5. The foregoing eligibility requirements are codified in various subsections of 22 O.S.2021, § 18(A) ↩︎
    6. 22 O.S.2021, § 18(C) ↩︎
    7. 22 O.S.2021, § 18(D)  ↩︎
    8. 22 O.S.2021, § 18(D) ↩︎
    9. 22 O.S.2021, § 18(D) ↩︎
    10. 22 O.S.2021, § 19(A)  ↩︎
    11. 22 O.S.2021, § 19(B)  ↩︎
    12. 22 O.S.2021, § 19(C)  ↩︎
    13. 22 O.S.2021, § 19(C), (D) ↩︎
    14. 22 O.S.2021, § 19(C)  ↩︎
    15. 22 O.S.2021, § 19(H)  ↩︎
    16. 22 O.S.2021, § 19(I), (J), (K)  ↩︎
    17. 22 O.S.2021, § 19(C), (E) ↩︎
    18. 22 O.S.2021, § 19(F), (M)  ↩︎
    19. 22 O.S.2021, § 19(C) ↩︎
    20. 22 O.S.2021, § 19(L)  ↩︎
    21. O.S.L.2022, § 143, amending 22 O.S.2021, §§ 18, 19. ↩︎