Oklahoma 2022 Regular Session

Oklahoma House Bill HB3316 Compare Versions

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30+April 13, 2022
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334 BILL NO. 3316 By: Miller, Talley, Echols,
435 Fugate, Stark, Waldron,
5-Goodwin, and Lepak of the
36+Goodwin and Lepak of the
637 House
738
839 and
940
1041 Pugh and Rader of the
1142 Senate
1243
1344
1445
1546
16-
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18-An Act relating to expungements; amending 22 O.S.
19-2021, Sections 18 and 19, which relate to the
20-expungement of criminal arrest rec ords; providing for
21-the automatic sealing of records under certain
22-circumstances; defining term; providing procedures
23-and guidelines for the automatic expungement of
24-certain eligible cases; requiring the submission of
25-certain report to the Legislature; requiring the
26-promulgation of rules; providing for the filing of
27-expungement petitions and unsealing of records apart
28-from the automatic expungement process; prohibiting
29-any cause of action for failing to identi fy eligible
30-cases; and providing an effective date.
47+[ expungements - criminal arrest records - automatic
48+sealing of records under certain circumstances -
49+effective date ]
3150
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34-SUBJECT: Expungements
35-
3653 BE IT ENACTED BY THE PEOPLE OF TH E STATE OF OKLAHOMA:
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3854 SECTION 1. AMENDATORY 22 O.S. 2021, Section 18, is
3955 amended to read as follows:
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4156 Section 18. A. Persons authorized to file a motion for
4257 expungement, as provided herein, must be within o ne of the following
4358 categories:
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4559 1. The person has been acquitted;
46- ENR. H. B. NO. 3316 Page 2
4760 2. The conviction was rev ersed with instructions to dismiss by
4861 an appellate court of comp etent jurisdiction, or an appellate court
4962 of competent jurisdiction reversed the conviction and the
5063 prosecuting agency subsequently dismissed the charge;
5164
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5291 3. The factual innocence of the perso n was established by the
5392 use of deoxyribonucleic acid (DNA) evid ence subsequent to
5493 conviction, including a person who has been released from prison at
5594 the time innocence was established;
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5795 4. The person has received a full pardon by the Governor for
5896 the crime for which the person was sentenced;
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6097 5. The person was arrest ed and no charges of any type,
6198 including charges for an offense different than that for which the
6299 person was originally arrested, are filed and the statute of
63100 limitations has expired or the pr osecuting agency has declined to
64101 file charges;
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66102 6. The person was under eighteen (18) years of age at the time
67103 the offense was committed and the person has receive d a full pardon
68104 for the offense;
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70105 7. The person was charged with one or more misdemeanor or
71106 felony crimes, all charges have been dismissed, the person has ne ver
72107 been convicted of a felony, no misdemeanor or felony charges are
73108 pending against the person and the statute of limitations for
74109 refiling the charge or charges has expired or the prosecuting agency
75110 confirms that the charge or charges will not be refiled; provided,
76111 however, this category shall not apply to charges that have been
77112 dismissed following the completion of a deferred judgment or delayed
78113 sentence;
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80141 8. The person was charged with a mis demeanor, the charge was
81142 dismissed following the successful comp letion of a deferred judgment
82143 or delayed sentence, the person has never been convicted of a
83144 felony, no misdemeanor or felony charges are pending against the
84145 person and at least one (1) year ha s passed since the charge was
85146 dismissed;
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87147 9. The person was char ged with a nonviolent felony offense not
88148 listed in Section 571 of Title 57 of the Oklahoma Statutes , the
89149 charge was dismissed following the successful completion of a
90150 deferred judgment or dela yed sentence, the person has never been
91-convicted of a felony, no misdemeanor or felony charges are pending ENR. H. B. NO. 3316 Page 3
151+convicted of a felony, n o misdemeanor or felony charges are pending
92152 against the person and at least five (5) years have pas sed since the
93153 charge was dismissed;
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95154 10. The person was convicted of a misdemeanor offense, t he
96155 person was sentenced to a fine of less than Five Hundred One Dollars
97156 ($501.00) without a term of imprisonment or a suspended sentence,
98157 the fine has been paid or satisfied by time served in lieu of the
99158 fine, the person has not been convicted of a felony and no felony or
100159 misdemeanor charges are pending against the per son;
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102160 11. The person was convicted of a misdemeanor offense, the
103161 person was sentenced to a term of imprisonment, a suspended sentence
104162 or a fine in an amount greater than Five Hundred Dollars ( $500.00),
105163 the person has not been convicted of a felony, no felo ny or
106164 misdemeanor charges are pending against the person and at least five
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107192 (5) years have passed si nce the end of the last misdemeanor
108193 sentence;
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110194 12. The person was convicted of a nonviolent f elony offense not
111195 listed in Section 571 of Title 57 of the Oklah oma Statutes, the
112196 person has not been convicted of any other felony, the person has
113197 not been convicted of a separate misdemeanor in the last seven (7)
114198 years, no felony or misdemeanor charges a re pending against the
115199 person and at least five (5) years have p assed since the completion
116200 of the sentence for the felony conviction;
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118201 13. The person was convicted of not more than two felony
119202 offenses, none of which is a felony offense listed in Section 13 .1
120203 of Title 21 of the Oklahoma Statutes or any offense that woul d
121204 require the person to register pursuant to the provisions of the Sex
122205 Offenders Registration Act, no felony or misdemeanor charges are
123206 pending against the person, and at least ten (10) years have passed
124207 since the completion of the sent ence for the felony conviction;
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126208 14. The person has been charged or arrested or is the subject
127209 of an arrest warrant for a crime that was committed by another
128210 person who has appropriated or used the person's name or other
129211 identification without the person's consent or authoriz ation; or
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131212 15. The person was convicted of a nonviolent felony offense not
132213 listed in Section 571 of Title 57 of the Oklahoma Statutes which was
133214 subsequently reclassified as a misdemeanor under Oklahoma law, the
134215 person is not currently serving a sentence fo r a crime in this state
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135243 or another state, at least thirty (30) days have passed since the
136-completion or commutation of the sentence for the crime that was ENR. H. B. NO. 3316 Page 4
244+completion or commutation of the sentence for the crime that was
137245 reclassified as a misdemeanor, any re stitution ordered by the court
138246 to be paid by the person has been satisfied in full, and any
139247 treatment program ordered by the court has been successfully
140248 completed by the person, including any person who failed a treatment
141249 program which resulted in an accel erated or revoked sentence that
142250 has since been successfully comp leted by the person or the person
143251 can show successful completion of a treatment program at a later
144252 date. Persons seeking an expungement of records under the
145253 provisions of this paragraph may u tilize the expungement forms
146254 provided in Section 2 18a of this act title.
147-
148255 B. For purposes of Section 18 et seq. of this title,
149256 "expungement" shall mean the sealin g of criminal records, as well as
150257 any public civil record, involving actions brought by and a gainst
151258 the State of Oklahoma arising from the same arrest, trans action or
152259 occurrence.
153-
154260 C. Beginning three (3) years after the effective date of this
155261 act and subject to the availability of funds, individuals with clean
156262 slate eligible cases shall be eligible t o have their criminal
157263 records sealed automatically. For purposes of Section 18 et seq. of
158264 this title, "clean slate eligible case" shall mean a case wher e each
159265 charge within the case is pursuant to paragraph 1, 2, 3, 5, 6, 7, 8,
160266 10, 11, 14 or 15 of subsection A of this section.
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162294 D. For purposes of seeking an expung ement under the provisions
163295 of paragraph 10, 11, 12 or 13 of subsection A of this section,
164296 offenses arising out of the same transaction or occurrence shal l be
165297 treated as one conviction and of fense.
166-
167298 D. E. Records expunged pursuant to paragraphs 4, 8, 9, 10, 11,
168299 12, 13, 14 and 15 of subsection A of this section shall be sealed to
169300 the public but not to la w enforcement agencies for law enforcement
170301 purposes. Records expunged pursuant to paragraph s 8, 9, 10, 11, 12
171302 and 13 of subsection A of this section shall be admissible in any
172303 subsequent criminal prosecution to prove the existence of a prior
173304 conviction or prior deferred judgment without the necessity of a
174305 court order requesting the unsealing of the records. Record s
175306 expunged pursuant to paragraph 4, 6, 12 or 1 3 of subsection A of
176307 this section may also include the sealing of Pardon and Parole Board
177308 records related to an application for a pardon. Such records s hall
178309 be sealed to the public but not to the Pardon and Pa role Board.
179-
180310 SECTION 2. AMENDATORY 22 O.S. 2021, Section 19, is
181-amended to read as follows: ENR. H. B. NO. 3316 Page 5
182-
311+amended to read as follows:
183312 Section 19. A. Any person qualified under Section 18 of this
184313 title may petition the district court of the district in which the
185314 arrest information pertaining to the person is located for the
186315 sealing of all or any part of the record, except basic
187316 identification information.
188317
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189344 B. The process for the automatic expungement of a cle an slate
190345 eligible case as defined in subsecti on C of Section 18 o f this title
191346 is as follows:
192-
193347 1. On a monthly basis, the Oklahoma State Bureau of
194348 Investigation shall identify cases which are clean slate eligib le by
195349 conducting a search of the criminal history repository records of
196350 the Bureau;
197-
198351 2. The Bureau shall, on a monthly basis, provide a list of
199352 clean slate eligible cases to the prosecuting agency and the
200353 arresting agency;
201-
202354 3. The prosecuting agency, arresting agency, and the Bur eau
203355 may, no later than forty-five (45) days from the day on which the
204356 notice described in paragraph 2 of this subsection is transmitted,
205357 object to an automatic expungement and such objection shall be
206358 transmitted to all parties. An objection may be made for any of the
207359 following reasons:
208-
209360 a. after reviewing the agency record, the agency believe s
210361 the case does not meet the definition of a c lean slate
211362 eligible case,
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213363 b. the individual has not paid court-ordered restitution
214364 to the victim, or
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216365 c. the agency has a reasonable belief, grounded in
217366 supporting facts, that an individual with a clean
218367 slate eligible case is continuing to engage in
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219395 criminal activity, whether charged or not charged,
220396 within or outside the state;
221-
222397 4. If an agency identified in paragraph 3 of thi s subsection
223398 objects for a reason described in paragraph 3 of this subsection
224399 within forty-five (45) days of the day on which the notice described
225400 in paragraph 2 of this subsection is transmitted, the record shall
226-not be expunged. Once a year, the Bureau shall submit a report to ENR. H. B. NO. 3316 Page 6
401+not be expunged. Once a year, the Bureau shall submit a report to
227402 the Legislature with a list of all cases where a record was not
228403 expunged pursuant to this paragraph ; and
229-
230404 5. After forty-five (45) days pass from the day on which the
231405 notice described in paragraph 2 of this subsection is sent, the
232406 Bureau shall provide to the courts a list of all cases where
233407 responses from all parties were received and no parties objected.
234408 The court shall review this list and provide to all agencies that
235409 have criminal history records a signed expungement order for a ll
236410 cases approved. Upon receipt of a signed expungement order, each
237411 agency shall seal the relevant records.
238-
239412 The Bureau and the Oklahoma Supreme Court may promulgate rules
240413 to govern the process for automatic expungemen t of records for a
241414 clean slate eligible case in accordance with this subsection.
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243415 C. 1. Nothing in this sectio n precludes an individual from
244416 filing a petition for expunge ment of records that are eligible for
245417 automatic expungement under subsection C of Section 18 of this title
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246445 if an automatic expungement has not occurred pursuant to subsection
247446 B of this section.
248-
249447 2. An individual does not have a cause o f action for damages a s
250448 a result of the failure of the Bureau to identify a case as eligible
251449 for automatic expungement.
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253450 D. An automatic expungement granted under subsection B of this
254451 section does not preclude a n individual from requesting the
255452 unsealing of records in accordan ce with subsection O of this
256453 section.
257-
258454 E. Upon the filing of a petition or entering of a court order
259455 as prescribed in subsection A of this section, the court shall set a
260456 date for a hearing and shal l provide thirty (30 ) days of notice of
261457 the hearing to the prosecuting agency, the arresting agency, the
262458 Oklahoma State Bureau of Investigation, and any other person or
263459 agency whom the court has r eason to believe may have rele vant
264460 information related to th e sealing of such re cord.
265-
266461 C. F. Upon a finding that the ha rm to privacy of the person in
267462 interest or dangers of unwarranted adverse consequences outweigh the
268463 public interest in retaining the reco rds, the court may order such
269464 records, or any part thereof e xcept basic identifi cation
270465 information, to be sealed. If t he court finds that neither sealing
271-of the records nor maintaining of the records unsealed by the agency ENR. H. B. NO. 3316 Page 7
466+of the records nor maintaining of the records unsealed by the agency
272467 would serve the ends of justice, the court may enter an appropriate
273468 order limiting access to such records.
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274495
275496 Any order entered under this subsection shal l specify those
276497 agencies to which such order shall apply. Any order entered
277498 pursuant to this subsection may be appealed by the petitione r, the
278499 prosecuting agency, the arresting agency, or the Okla homa State
279500 Bureau of Investigation to the Oklahoma Supreme Court in accordance
280501 with the rules of the Oklahoma Supreme Court. In all such appeals,
281502 the Oklahoma State Bu reau of Investigation is a n ecessary party and
282503 must be given notice of the appellate pro ceedings.
283-
284504 D. G. Upon the entry of an order to seal the rec ords, or any
285505 part thereof, or upon an automatic expungement described in
286506 subsection B of this section, the subject official actions shall be
287507 deemed never to have occurred, and the person in interest and all
288508 criminal justice agencies may properly reply, upo n any inquiry in
289509 the matter, that no such action ever occurred and that no such
290510 record exists with resp ect to such person.
291-
292511 E. H. Inspection of the records included in the order may
293512 thereafter be permitted by the court only upon petition by the
294513 person in interest who is the subject of such records, the Attorney
295514 General, or by the prosecuting agency and only to those persons and
296515 for such purposes named in such petition.
297-
298516 F. I. Employers, educational institutions, state and local
299517 government agencies, official s, and employees shall not, in any
300518 application or interview or otherwise, require an applicant to
301519 disclose any information contained in s ealed records. An applicant
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302547 need not, in answer to any question concerning arrest and criminal
303548 records, provide inform ation that has been sealed, including any
304549 reference to or information concerning such sealed information and
305550 may state that no such actio n has ever occurred. Such an
306551 application may not be denied solely because of the refusal of the
307552 applicant to disclose arrest and criminal records information that
308553 has been sealed.
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310554 G. J. All arrest and criminal records informat ion existing
311555 prior to the effective date of this section, except basic
312556 identification information, is also subject to sealing in accordance
313557 with subsection C F of this section.
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315558 H. K. Nothing in this section shall be construed to authorize
316-the physical destruction of any criminal justice records. ENR. H. B. NO. 3316 Page 8
317-
559+the physical destruction of any criminal justice records.
318560 I. L. For the purposes of this section, sealed materials which
319561 are recorded in the same document as unse aled material may be
320562 recorded in a separate document, and sealed, then obliterated in the
321563 original document.
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323564 J. M. For the purposes of this section, district court in dex
324565 reference of sealed material shall be destroyed, removed or
325566 obliterated.
326-
327567 K. N. Any record ordered to be sealed pursuant to this section,
328568 if not unsealed within ten (10) years of the expungement order, may
329569 be obliterated or destroyed at the end of the ten-year period.
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330596
331597 L. O. Subsequent to records being sealed as provided herein,
332598 the prosecuting agency, the arresting agency, the Oklahoma State
333599 Bureau of Investigation, or other interested person or agency may
334600 petition the court for an order unsealing said records. Upon filing
335601 of a petition the court shall set a date for hearing, which hearin g
336602 may be closed at the discretion of the court, and shall provide
337603 thirty (30) days of notice to all intereste d parties. If, upon
338604 hearing, the court determines there h as been a change of conditions
339605 or that there is a compelling reason to unseal the records , the
340606 court may order all or a portion of the records unsealed.
341-
342607 M. P. Nothing herein shall prohibit the intr oduction of
343608 evidence regarding actions sealed pursuant to the provisions of this
344609 section at any hearing or trial for purposes of impeaching the
345610 credibility of a witness or as evidence of character testimony
346611 pursuant to Section 2608 of Title 12 of the Oklah oma Statutes.
347-
348612 N. Q. If a person qualifies for an expungem ent under the
349613 provisions of paragraph 3 of subsection A of Section 18 of this
350614 title and said petition for expungement is granted by the court, the
351615 court shall order the reimbursement of all filing f ees and court
352616 costs incurred by the petitioner as a result of filing the
353617 expungement request.
354-
355618 SECTION 3. This act shall become eff ective November 1, 2022.
356- ENR. H. B. NO. 3316 Page 9
357-Passed the House of R epresentatives the 9th day of March, 2022.
358-
359-
360-
361-
362- Presiding Officer of the House
363- of Representatives
364-
365-
366-Passed the Senate the 27th day of April, 2022.
367-
368-
369-
370-
371- Presiding Officer of the Senate
372-
373-
374-
375-OFFICE OF THE GOVERNOR
376-Received by the Office of the Governor this ____________________
377-day of ___________________, 20_______, at _______ o'clock _______ M.
378-By: _________________________________
379-Approved by the Governor of the State of Oklahoma this _ ________
380-day of ___________________, 20_______, at _______ o'clock _______ M.
381-
382-
383- _________________________________
384- Governor of the State of Oklahoma
385-
386-OFFICE OF THE SECRETARY OF STATE
387-Received by the Office of the Secretary of State this __________
388-day of ___________________, 20_______, at _______ o'clock _______ M.
389-By: _________________________________
390-
619+COMMITTEE REPORT BY: COMMITTEE ON APPROPRIATIONS
620+April 13, 2022 - DO PASS AS AMENDED