Can I get an assault charge cleared from my record?16-Apr-2016
Q: When I was in college, I was out with friends and got into a fight. It was stupid: I had been drinking and let a situation spiral out of control. The situation left me with a criminal record for assault. That's not the person I am. I'm older and wiser now, and I hate having this assault charge on my record. Is there any way I can get an expungement of my assault charge?
A: Whether or not you can get an assault charge cleared from your record depends upon the specific charge, and how you go about getting the assault charge expunged depends upon how your case was resolved.
In general, a simple assault and battery charge would be prosecuted as a misdemeanor, and therefore would be eligible for expungement. Simple assault is
punishable by a maximum of 30 days in jail, and simple assault and battery is punishable by a maximum of 90 days in jail.
In many cases, a defendant charged with simple assault and battery would be given a deferred sentence. The defendant would enter a guilty plea, but the judge would delay judgement and sentencing to allow the defendant to complete probation instead of jail. If the defendant is successful in adhering to the terms of his or her probation, the plea is changed to "not guilty," the case is dismissed, and the defendant's name is stricken from court records. This is known as a Section 991(c) expungement, or a deferred sentence expungment.
A Section 991(c) expungement is not a full expungement, though. The arrest record remains and is visible in OSBI background checks. Fortunately, there is a way to get a full expungement of the misdemeanor, whether it resulted in a deferred sentence or a conviction--under 22 O.S. § 18:
8. The person was charged with a misdemeanor, the charge was dismissed following the successful completion of a deferred judgment or delayed sentence, the person has never been convicted of a misdemeanor or felony, no misdemeanor or felony charges are pending against the person, and at least one (1) year has passed since the charge was dismissed;
10. The person was convicted of a misdemeanor offense, the person has not been convicted of a felony, no felony or misdemeanor charges are pending against the person, and at least ten (10) years have passed since the end of the last misdemeanor sentence;
Please note that the above expungement requirements apply to misdemeanor charges and conviction. While it is possible to have a felony charge expunged, only non-violent felonies may be cleared from one's criminal record. Violent felonies, which can not be expunged, are listed in 57 O.S. § 571. They include felony assault charges:
a. assault, battery, or assault and battery with a dangerous or deadly weapon;
b. shooting with intent to kill, assault, battery, or assault and battery with a deadly weapon or by other means likely to produce death or great bodily harm, as provided for in Section 652 of the Oklahoma Statutes;
c. aggravated assault and battery on a police officer, sheriff, highway patrolman, or any other officer of the law;
d. poisoning with intent to kill;
e. shooting with intent to kill;
f. assault with intent to kill;
g. assault with intent to commit a felony;
h. assaults while masked or disguised;
If your college assault charge includes any of the above offenses, then you would not be eligible for expungement of the assault from your criminal record.
To learn more about Oklahoma expungement laws, or to find out if you are eligible to get an offense cleared from your record, call attorney Adam Banner at (405) 778-4800.
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