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Oregon Court Vacates Order Refusing to Seal Arrest Record

by Mark Wilson

Under ORS 137.225(l)(b), “at any time after ... a dismissal of the charges,” an “arrested person may apply” to the trial court “for an order setting aside the record of arrest.” The court is required to seal the records if it finds after a hearing that “the circumstances and behavior of the applicant” since arrest “warrant setting aside the conviction, or arrest record.” ORS 137.225(3). If the applicant “has been convicted of one of” 13 different offenses, however, the court may refuse to seal the records upon finding “by clear and convincing evidence that granting the motion would not be in the best interests of justice.” ORS 137.225(12).The Oregon Court of Appeals held that a lower court improperly refused to seal a criminal defendant’s arrest record after the prosecution dismissed the charges against her.

In May 2015, Kimberly Anne Malm was arrested and charged with manslaughter, vehicular assault, driving under the influence of intoxicant, and reckless driving. The trial court subsequently “entered a judgment dismissing the charges without prejudice” at the request of the prosecution.

Malm then moved, pursuant to ORS 137.225(l)(b), for an order setting aside and sealing her arrest record. The prosecution opposed the motion, arguing that Malm’s “circumstances and behavior from the date of arrest” did not warrant setting aside the arrest under ORS 137.225(3) and that setting aside the arrest would not be in the best interests of justice under ORS 137.225(12).

At a hearing on the motion, however, the prosecution abandoned its argument under ORS 137.225(3) that Malm’s “circumstances and behavior” since arrest did not warrant setting aside the arrest record. The State made clear that it was only “going forward on subsection (12).” The trial court agreed with the prosecution that ORS 137.225(12) “does not apply only to convictions” but also to arrest records. The court then denied Malm’s motion, finding by clear and convincing evidence that setting aside and sealing her arrest record would not be in the best interest of justice.

The Court of Appeals reversed, noting that “the state now agrees that ORS 137.225(12) does not apply in this case and that the trial court erred in denying defendant’s motion on the basis of that provision.” Given that Malm was not convicted of any crimes, the Court agreed that the plain language of ORS 137.225(12) established that it was inapplicable. “Under the circumstances of this case, including the fact that the state agreed that the court should not deny the motion based on the circumstances and behavior of the applicant from the date of arrest to the date of the hearing under ORS 137.225(3), the court should have granted defendant’s motion.” Accordingly, the Court of Appeals “reversed and remanded for entry of an order setting aside and sealing arrest record pursuant to ORS 137.225(3).” See: State v. Malm, 287 Ore. App. 201(2017). 

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Related legal case

State v. Malm



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