POSTED ON DECEMBER 5, 2012:
Criminal Records Reboot
Law makes it easier to erase felonies, misdemeanors
When it comes to people inquiring about clearing up their criminal records, the phone may not yet be ringing off the hook at the office of Brian Huddleston.
But the Tulsa attorney said it may only be a matter of time, with a new state law that took effect Nov. 1 making it easier to scrub away indiscretions -- including, in some cases, felony charges -- from public and online databases.
"It's been very hard for felons to get their records expunged, nigh on impossible, in fact," Huddleston said.
The new law will give potential relief to those who had charges dismissed after successfully completing the terms of a deferred judgment or delayed sentence.
When are deferred sentences handed down?
Huddleston said the circumstances might involve a first offense, for example. Such charges, including drug possession charges, might then be dismissed "if you keep your nose clean, for, say, three years and have no other charges pending at the end of the three years," Huddleston said.
If the charge faced was a misdemeanor, a petition may be filed to have the charge removed from the public record. This means that the charge would no longer show up when searching for a person by name in the public criminal records database maintained by the Oklahoma State Bureau of Investigation. It also would not show up in searches of online court records maintained by the Oklahoma State Courts Network.
However, petitions for such an expungement are only allowed if a person has never been convicted of a misdemeanor or felony. The petitioner also must wait two years after the charge has been dismissed before seeking such an expungement.
For felonies, the process works in a similar way, but the change in the law only affects those facing a charge related to a nonviolent offense. For such a felony, a person must wait ten years after the charge was dismissed before applying for an expungement.
Huddleston said that if a felony charge pops up in a background check by an employer or a landlord, the consequences can be truly life altering. Something as basic as housing might be affected, he said. "You're not going to be able to get a good apartment or a good rent house," he said.
The federal government's U.S. Equal Employment Opportunity Commission has recently emphasized to employers the importance in distinguishing between charges and convictions, issuing new guidelines in April. Also, rules exist for background checks that require applicants be notified if their criminal records keep them from getting a job -- offering them a chance to dispute the reports.
But another attorney, Oklahoma City-based Stacy Morey, said that the effects of a criminal record are undeniable.
"The effects are far, far reaching. I've seen people, it's prevented them from getting employment. It's kept people from getting housing, both private and public. It's caused controversy with the placement of children, with respect to adoption and things like that," Morey said.
STATE REP. CORY WILLIAMS
COURTESY OF OKHOUSE.GOV
Even if the records exist but show that charges have been dismissed, "private entities and private individuals, they can use this information to make decisions however they want to," Morey said.
Morey worked for several years as an attorney with the Oklahoma State Bureau of Investigation, beginning her career there about 12 years ago.
The bureau notes in its online history that expungement laws in Oklahoma date back to 1987. But Morey said that, in practice, getting an expungement has been difficult.
She recalled that when she began working for the bureau, "back then, the expungement statutes were very, very restrictive." She added: "There was only a handful of exceptions that you had to meet in order to even qualify."
Now, with reform, the state actually lists 12 circumstances under which a person might qualify for expungement. Huddleston lists all 12 on his website, huddlestonlawoffices.com.
Morey said that before the most recent expungement legislation, there were "baby steps" made to make clearing a criminal record easier. The tide of opinion among those in the legal community began to eventually turn, however. She said the chief complaint about the system was that while the law carved out a process for those who had faced a felony charge, "there was not a way for people who had a misdemeanor to get their record expunged when they got a deferred sentence," Morey said.
The support from Oklahoma's district attorneys for reform has been evident. State Rep. Cory Williams (D-Stillwater), the primary author of the legislation, received the Liberty Bell honor from the Oklahoma District Attorneys Association. The association also honored State Sen. Rob Johnson (R-Kingfisher) for his work on the bill.
It was actually the second try at such legislation for Williams, who said that in an earlier legislative session he had introduced a bill that "really would have kind of blown the lid off of expungement."
The version that ultimately passed involved working with prosecutors and making compromises, he said. He noted that while the records may disappear from public view, they will not be completely erased because they will remain on file for review by prosecutors.
Williams explained why he thought reform was necessary.
"It's a competitive job market out there, and I'm a big supporter in, if you do the crime, you do the time and then you get back in society and you become a productive member of society," he said. By keeping even dismissed charges as a part of the public record, Williams said authorities had basically given a sort of "life sentence," because "you have this stain on your resume basically for life, or for a very long time."
Huddleston said people may seek an expungement by filing their own case without the help of an attorney, noting that such a filing must be done in the county where the original charge was filed. However, the Oklahoma State Bureau of Investigation recommends an attorney's involvement.
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