In Oklahoma, having a record expunged is synonymous with having a record sealed. When a record is expunged, the record is sealed to everyone except law enforcement. It’s best to think of an Oklahoma expungement as a sealing of records.
The only way an arrest record can be expunged is to go through the formal expungement process. It isn’t automatic.
Expunge an Arrest and/or Charge in Oklahoma
The Section 18 Expungement is the arrest expungement. This type of expungement seals records, including an arrest, to everyone except law enforcement. It’s Oklahoma’s most comprehensive expungement. It is defined in 22 O.S. § 18 as the sealing of criminal records, as well as any civil public record, involving actions brought by and against the State of Oklahoma arising from the same arrest, transaction, or occurrence.
Eligibility For an Arrest/Charge Expungement in Oklahoma
You are eligible to have your arrest and/or charges expunged if:
- You have been acquitted;
- Your conviction was reversed with instructions to dismiss by an appellate court of competent jurisdiction or an appellate court of competent jurisdiction reversed the conviction, and the prosecuting agency subsequently dismissed the charge;
- Your factual innocence was established by the use of DNA evidence subsequent to conviction, even if you have been released from prison at the time innocence was established;
- You have received a full pardon;
- You were arrested and no charges of any type, including charges for an offense different than that for which you were originally arrested, are filed and the statute of limitations has expired or the prosecuting agency has declined to file the charges;
- You were under 18 years old at the time the offense was committed and you have received a full pardon for the offense;
- You were charged with one or more misdemeanor or felony crimes, all charges have been dismissed, you have never been convicted of a felony, no misdemeanor or felony charges are pending against you, and the statute of limitations for re-filing the charge or charges has expired or the prosecuting agency confirms that the charge or charges will not be re-filed (this category does NOT apply to charges that have been dismissed following the completion of a deferred judgment or delayed sentence);
- You were charged with a misdemeanor, the charge was dismissed following the successful completion of a deferred judgment or delayed sentence, you have never been convicted of a felony, no misdemeanor or felony charges are pending against you, and at least one year has passed since the charge was dismissed;
- You were charged with a nonviolent felony offense, not listed in 57 O.S. § 571, the charge was dismissed following the successful completion of a deferred judgment or delayed sentence, you have never been convicted of a felony, no misdemeanor or felony charges are pending against you, and at least five years have passed since the charge was dismissed;
- You were convicted of a misdemeanor offense, you were sentenced to a fine of less than $501 without the term of imprisonment or a suspended sentence, the fine has been paid or satisfied by time served in lieu of the fine, you have not been convicted of a felony, and no felony or misdemeanor charges are pending against you;
- You were convicted of a misdemeanor offense, you were sentenced to a term of imprisonment, a suspended sentence, or a fine in an amount greater than $500, you have not been convicted of a felony, no felony or misdemeanor charges are pending against you, and at least five years have passed since the end of the last misdemeanor sentence;
- You were convicted of not more than two non-violent felonies, have not been convicted of any offense that requires you to be a registered sex offender, no felony or misdemeanor charges are pending against the you, and at least ten years have passed since the completion of the sentence for the felony conviction; (Starting November 1, 2019)
- You were convicted of a nonviolent felony, you haven’t been convicted of any other felony, you person haven’t been convicted of a separate misdemeanor in the last seven years, no felony or misdemeanor charges are pending against you and at least five years have passed since the completion of the sentence for the felony conviction;
- You were convicted of a nonviolent felony that was subsequently reclassified as a misdemeanor under Oklahoma law, you are not currently serving a sentence for a crime in this state or another state, at least 30 days have passed since the completion or commutation of the sentence for the crime that was reclassified as a misdemeanor, any restitution ordered by the court to be paid has been satisfied in full, and any treatment program ordered by the court has been successfully completed (including failure of a treatment program that resulted in an accelerated or revoked sentence that has since been successfully completed by you or you can show successful completion of a treatment program at a later date;
- You have been charged, arrested, or are the subject of an arrest warrant for a crime that was committed by another person who has appropriated or used your name or other identification without your consent or authorization;
- Prostitution related offenses for victims of human trafficking may be expunged. A court may enter an order for expungement of law enforcement and court records relating to a charge or conviction for a prostitution-related offense, committed as a result of the defendant having been a victim of human trafficking;
- Victims of identity theft can have information expunged. When a charge is dismissed because the court finds that the defendant has been arrested or charged as a result of the defendant’s name or other identification having been appropriated or used without the defendant’s consent or authorization by another person, the court dismissing the charge may enter an order for expungement of law enforcement and court records relating to the charge.
Process to Expunge an Arrest or Charge in Oklahoma
The first step in seeking an arrest expungement is to get a copy of your criminal history report from the OSBI. This can be done by filling out their criminal history report request and delivering it to them. You can hand-deliver it, mail it in, or fax it in. It costs $15 to get a copy of your report. As a courtesy, I have provided a link to the OSBI criminal history request form in the resources section on my website. That report will tell you exactly what OSBI’s records reflect. That will give you a good idea of what you may or may not be eligible for.
If you qualify under § 18 for an expungement, then you will petition the district court of the district in which the arrest information pertaining to your arrest is located. Upon the filing of a petition or entering of a court order, the court will set a date for a hearing and provide thirty days of notice of the hearing to the prosecuting agency, 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. The clerk will provide a hearing date. Between the time that the clerk gives you the hearing date and the hearing, a copy of the petition to expunge must be served to District Attorney, the arresting agency, the OSBI, and other parties that were involved in the case. You will bring that form to the hearing after receiving signatures from all those agencies.
After all necessary parties have been notified, you will attend a hearing in front of a judge. You will answer questions from the judge at the hearing. The judge may also decide to remove only some of your records, and/or limit who can access your records. Upon a finding that the harm to your privacy or dangers of unwarranted adverse consequences outweigh the public interest in retaining the records, the court may order such records, or any part them except basic identification information, to be sealed. If the court finds that neither sealing of the records nor maintaining of the records unsealed by the agency would serve the ends of justice, the court may enter an appropriate order limiting access to such records. Any order entered will specify those agencies to which the order applies.
If you have multiple arrests to be expunged, then you may not have to file a petition for each arrest separately. Multiple arrests in the same county can be filed for in one petition. However, a separate petition must be filed for each county where you have records that you want expunged. The OSBI can object to your request, even if you qualify for an expungement. The state can object to your request, even if you are qualified to get an expungement.
How Long it Takes to Expunge an Arrest or Charge in Oklahoma
It takes about a month for the paperwork to get processed for expungement. This includes delivering copies of the petition to the law enforcement agency or the arresting law enforcement agency, the prosecutor, and OSBI. There is about a month between the time when a hearing is requested and the hearing occurs. After receiving a certified copy of the expungement order, the expungement of court records takes about one month after the clerk receives the order. Expungement of arrest record usually takes about a month after receipt of the order and required fee. Therefore, total time can be as short as a couple of months; however, it’s best to give it more time, due to the numerous agencies that must approve of the expungement.
You won’t be notified when your record has been expunged. You can check to see if your record has been expunged by sending a request to OSBI.
Cost of an Arrest/Charge Expungement in Oklahoma
In addition to the attorney’s fees for expunging a record, the actual expungement costs money. The OSBI’s fee for the expungement is $150. The court fees will cost approximately $175. Some municipalities will also charge about $150 for expungements. There are increased fees for postage, because certified mail is required to send the petition.
What if I’m Not Eligible to Have my Record Expunged?
There are several things that you can do if you are not eligible to have your record expunged at the current time. The first is to wait. Several categories of expungements require there be a certain amount of time in order to expunge a record. For instance, you can get your arrest expunged one year after completion of a deferred sentence. Therefore, you will have to wait at least one year after your deferred probation ends to get that deferred sentence expunged. If you received a misdemeanor conviction, or if you received a misdemeanor conviction and received any time in jail, a suspended sentence, or a fine greater than $500, then you must wait at least 5 years since the end of the last misdemeanor sentence. If you have two misdemeanors, then you must wait five years since the end of the last misdemeanor sentence to get the first one expunged.
A second thing that you should do if you are currently not eligible for expungement is to not get into any more trouble. There are multiple categories of expungement that require the person seeking an expungement to not have any criminal charges pending. Therefore, even if you waited the required amount of time, you won’t be able to have your record expunged if you have pending charges.
A third thing that can be done while waiting for the time required to expunge your case is to get a pardon from the governor. If you have one or two non-violent felony convictions, then it is still possible to get those convictions expunged; however, it will not be possible to get those expunged without a pardon from the governor. Therefore, it would be wise to begin working on a pardon prior to the minimum time to expunge your case if you want to have your felony or felonies expunged as soon as possible.
A final thing that you may be able to do is to wait for the laws to change. The current climate in Oklahoma is very pro criminal justice reform. The expungement laws change almost every year. Somebody who is ineligible for an expungement under the current law may become eligible for an expungement the next time the law is amended.
What Happens After an Arrest/Charge/Conviction Expungement
OSBI cannot advise anyone about whether a specific incident will appear on the criminal record. The best way to know what is on your criminal record is to request a copy of your criminal history. If the record is expunged, the FBI record will also be expunged.
The district court index reference of sealed material will be destroyed, removed, or obliterated. Inspection of the records included in the order for expungement may, afterwards, be permitted by the court only upon petition by the person in interest who is the subject of such records, the attorney general, or by the prosecuting agency, and only for those persons and for such purposes as named in such petition. Any record ordered to be sealed pursuant to § 19, if not unsealed within ten years of the expungement order, may be obliterated or destroyed at the end of the ten-year period.
Subsequent to records being sealed per 22 O.S. § 19, the prosecuting agency, the arresting agency, the OSBI, or other interested person or agency may petition the court for an order unsealing said records. Upon filing of a petition, the court will set a date for hearing, which hearing may be closed at the discretion of the court, and will provide 30 days of notice to all interested parties. If, upon hearing, the court determines there has been a change of conditions or that there is a compelling reason to unseal the records, the court may order all or a portion of the records unsealed.
Rights After an Expungement
The statute that covers admitting to an expunged crime is 22 O.S. § 19. With a § 18 expungement, you can say that you do not have a criminal record, with very few exceptions. No one can make you reveal what’s in your expunged record, and no one can deny you a job or housing because you refused to reveal your records. You will not have to include an expunged arrest on a Self-Defense Act application.
Your expunged arrest can still be used to discredit your testimony in court because law enforcement will be able to see your expunged records. Be sure to talk to a lawyer about your arrest record before you appear in court as a witness, or for any other reason if your record has been expunged.
Upon the entry of an order to seal the records, or any part of the records, the subject official action will be deemed never to have occurred. The person in interest and all criminal justice agencies may properly rely, upon any inquiry into the matter, that no such action ever occurred, and that no such record exists with respect to such a person.
Employers, educational institutions, state and local government agencies, officials and employees cannot, in any application or interview or otherwise, require an applicant to disclose any information contained in the sealed records. An applicant need not, in answer to any question concerning an arrest and criminal records, provide information that has been sealed, including any reference to or information concerning such sealed information, and they may state that no such action has ever occurred. Such an application may not be denied solely because of the refusal of the applicant to disclose arrest in criminal record information that has been sealed.
Note that these protections apply only to state agencies and businesses. Different rules may apply in situations involving the federal government. People this could affect include immigrants and individuals undergoing a federal background investigation.
Sources: 22 O.S. § 18, 22 O.S. § 19, & 22 O.S. § 991c
Records That Aren’t Expunged in Oklahoma
Fingerprint cards will not be destroyed when an expungement is granted. Expungements do not allow the destruction of physical records. Identifying information, including fingerprints, may still be maintained by the OSBI; however, that type of identifying information will not reference or be attached to the sealed arrest information. Private sector records, such as newspaper articles, will not be expunged; those will still be available for the public to view.
Traffic offenses on a person’s driving history cannot be expunged. They are automatically removed from the driving record after three years.
Why Hire an Attorney for an Expungement
The expungement process is very complicated. Attorneys are specifically trained in how to navigate this complicated legal system. It can be very hard for somebody who is not trained to find all the information they need. There are various forms, petitions, and orders that the court will use. Each court requires specific things. They require that certain people have signed specific documents. It would be extremely challenging for somebody who has never done this, or is not familiar with the law, to do this on their own. Keep in mind that when you go to court for the hearing, you will be going up against other attorneys who are trained in the law.
You’ll greatly improve your chances if you have an attorney on your side. Additionally, an attorney who has done expungements will know who to contact and the best way to go about getting the various parties to approve of the expungement. With an attorney, the process will flow smoothly, and you’ll have little to worry about.
Current as of July 15, 2019.
Sources: 22 O.S. § 18, 22 O.S. § 19, 22 O.S. § 991c, 22 O.S. § 19c, 22 O.S. § 19a, & 57 O.S. § 571