Words Matter

In a front-page story in Sunday's Oregonian reporter Susan Goldsmith tells the tale of "innocent" people wrongly charged with driving under the influence or reckless driving who then suffer because they can't have their police records erased.

There are some problems with her story but she’s absolutely right about one thing: Oregon’s system of sealing or not sealing records is a mess.

One of the problems with the story is Ms. Goldsmith’s choice of words. In the law, words matter. Even the smallest words generally have specific definitions. The choice of those words, those specifics, in fact are the basic elements of our written laws. So it’s important first to define and understand the words. I'll start with “expungement”.

Expungement is the complete and indelible destruction of a record so that there is nothing left to be found. All records are deleted or shredded; it is as if the incident never happened. Oregon law allows for expungement of virtually any juvenile record, under the theory that children deserve a clean slate when they become adults.

Adults are subject to different rules, and the rules for traffic violations are different from other crimes.

For crimes other than traffic violations, Oregon law allows for the records of any arrest that did not result in a conviction to be “sealed”, including arrests for rape and murder, after a motion is made to “set aside” the records of the arrest. Sealed records do not appear on any public record available to anyone except law enforcement. If an employer asks, “Have you ever been arrested?” you can legally answer “No.” If you find yourself on the witness stand in a courtroom and are asked the same question, again, you can legally answer “No.”

Oregon law also allows records of convictions for most crimes, including domestic violence, criminally negligent homicide, some burglaries and most drug possession, to be sealed after a motion to set aside made three years after the conviction, so long as the person has not been in additional trouble with the law during that three-year period.

These laws are both good and bad. On the good side, they allow people who were arrested for a crime they truly did not commit to have a clean record; and they allow people who have led a crime-free life for at least three years to go forth with a record clear of misdemeanor and less serious felony convictions.

On the bad side, the laws make no difference between the truly innocent and the truly guilty who the D.A. decided not to prosecute because of some glitch in the arrest process or some other inability to go forward in court. Often enough this is a man who has been arrested for beating up his wife or girlfriend, or sexually abusing her, but the woman is so afraid of him that she won’t testify against him, and without her testimony the man cannot be successfully prosecuted. Or it’s a burglar, embezzler, drug dealer or thug who manages to keep clean for three years in between crimes. Plenty of such people are in courtrooms across Oregon right now. They are legally claiming to the judge and the jury that they have no previous record but, even though they may be only 30 years old, are in court for their fourth separate embezzlement charge.

It could be worse. A man in central Oregon murdered a woman whom he had assaulted a few years previously. At that time he had been convicted of Felony Assault, but three years later his lawyer filed a motion to set aside the conviction. By the time the man murdered the woman, his previous record was sealed. If he had taken the witness stand at the murder trial he could have legally told the judge and the jury that he had never before been convicted of a crime.

Traffic violations, from parking tickets to arrests for driving under the influence, are subject to entirely different laws.

Oregon law doesn’t allow traffic violations or infractions to be set aside and sealed. The main reason is because of the societal interest in keeping track of people who are frequently arrested for -- and not so frequently convicted of -- driving under the influence. It’s a well-known fact that a person may drive under the influence many dozens of times before being stopped and arrested. And many of those who are arrested but not convicted are either veteran drunk drivers who refuse to provide any information to the arresting officer, or the beneficiaries of defense lawyers like Mr. Hingson, who charges over $10,000 to work his magic and persuade a judge to suppress a traffic stop, sparing his client from justice.

The secondary reason traffic violations cannot be sealed is the one stated by Ms. Goldsmith in her article: that traffic violations don’t merit the time it would take to erase all record of their happening. As a practical matter, most traffic violations automatically cycle off your DMV record after three years -- unless you are a very frequent customer.

In any case, arrests for driving under the influence and other traffic violations that do not result in conviction reside only in the Law Enforcement Data System (LEDS), a highly secure database accessible only to law enforcement personnel and only for official use. Official use doesn’t mean that I can use the LEDS to find out whether someone I don’t like has committed a crime. There are only two legitimate uses -- for employment in law enforcement and for record checks by criminal justice agencies of accused criminals -- and law enforcement risks its access to the system if LEDS is used for any other purpose.

In other words, even with all the computer databases currently available, a record for a DUII on the LEDS system is not at all incapable of being deleted or obliterated -- or "indelible," as Ms. Goldsmith writes.

The people in Mrs. Goldsmith's story may indeed be embarrassed or humiliated. But their beef about being “unduly burdened” should be with their employer, not with the legal system. They work or are seeking employment with agencies and businesses that are (perhaps in some cases overly) sensitive to the law, who require their employees to report any and every adverse contact with the law, and who have rules that include immediate dismissal for not reporting or for lying. It’s the prerogative of those businesses to know when an applicant or employee has been “busted”, to use a word in the Oregonian’s headline. ("Busts stick to innocent drivers.") Anyone who has applied for a job in law enforcement or for a position that requires a national security clearance will remember the intrusive questions asked and the requirements of personal behavior one is expected to follow throughout the term of employment. It’s a like-it-or-leave-it decision for the employee.

Meanwhile, it remains true that, as I wrote at the beginning, Oregon’s system of sealing or not sealing arrests is a mess. We need to fix the laws to protect victims not from an embarrassing few minutes at work, but from thugs and thieves who manage to keep their offenses in check just long enough to get their record clean before hurting someone else.