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Can I Clear an "85 Percent Crime" from My Record?

16-Feb-2016

If you have been convicted of a crime, the lingering criminal record can have a detrimental effect on your ability to find a job, gain admission to college, obtain a housing lease, or secure a financial loan. Sometimes, this can be remedied through an expungement of the criminal record. Expungement is a legal process that effectively "erases" the criminal record, and in many cases it even allows a job applicant to legally claim that he or she has never been convicted of the crime that was expunged.

However, those who have been convicted of violent crimes are unlikely to find relief through criminal record expungement. Oklahoma law in 22 O.S. § 18 lists the eligibility requirements for a petition for expungement. In most cases, these criteria only apply to people who have been convicted of misdemeanors or non-violent felonies.

So what is considered a violent felony? State law explicitly lists 51 offenses which are deemed "violent crimes." These offenses--including murder, manslaughter, rape, robbery, and certain types of assault--are listed in 57 O.S. § 571. You can also find the full list here.

Included in those 51 violent crimes which may not be expunged are the "85 Percent Crimes."

State law in 21 O.S. § 13.1 stipulates that a person convicted of one of 22 serious crimes must serve at least 85 percent of the sentence before becoming eligible for parole. Most of these crimes are also listed as violent crimes in § 571, and are therefore inexpugnable.

Coming back to the question, "Can I clear an "85 Percent Crime" from my record?" the short answer is--in most cases--no.

However there are a couple of rare exceptions to this. It is possible to have the record of conviction of an 85 percent crime expunged under the following circumstances:

  • The 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 district attorney subsequently dismissed the charge; 
  • The factual innocence of the person was established by the use of deoxyribonucleic acid (DNA) evidence subsequent to conviction, including a person who has been released from prison at the time innocence was established; 
  • The person has received a full pardon on the basis of a written finding by the Governor of actual innocence for the crime for which the claimant was sentenced;
 

In other words, the conviction may be expunged if a person who is convicted of the crime is later exonerated of that crime. Once the conviction is determined to be wrongful because of a person's actual innocence of the crime, the record may be expunged.

A person who is arrested for an 85 percent crime, but never convicted, may also be eligible to have the arrest record expunged according to these expungement criteria:

  • The person has been acquitted;
  • The person was arrested and no charges of any type, including charges for an offense different than that for which the person was originally arrested, are filed and the statute of limitations has expired or the prosecuting agency has declined to file charges;
  • The person has been charged or arrested or is the subject of an arrest warrant for a crime that was committed by another person who has appropriated or used the person's name or other identification without the person's consent or authorization.

Call 405-778-4800 to learn more about Oklahoma record expungement or to schedule a free consultation.



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