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State v. Malm

Court of Appeals of Oregon

August 2, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
KIMBERLY ANNE MALM, Defendant-Appellant.

          Submitted June 2, 2017

         Marion County Circuit Court 15CR20856; Courtland Geyer, Judge.

          Jason E. Thompson and Ferder Casebeer French & Thompson, LLP, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Hadlock, Chief Judge, and Sercombe, Senior Judge.

         Case Summary:

         Defendant appeals the trial court's order denying her motion to set aside and seal the record of her arrest. She asserts, and the state agrees, that the trial court improperly relied on ORS 137.225(12) in denying the motion.

         Held:

         Under the circumstances of this case, including the fact that the state agreed that the court should not deny the motion based on the circumstances and behavior of the applicant from the date of arrest to the date of the hearing under ORS 137.225(3), the court should have granted defendant's motion.

         Reversed and remanded for entry of an order setting aside and sealing arrest record pursuant to ORS 137.225(3).

         [287 Or.App. 202] DEHOOG, P. J.

         In this case, defendant was arrested in May 2015. She was charged with first-degree manslaughter, ORS 163.118, second-degree manslaughter, ORS 163.125, failure to perform the duties of a driver toward injured persons, ORS 811.705, driving under the influence of intoxicants, ORS 813.010, vehicular assault of a bicyclist or pedestrian, ORS 811.060, [1] and reckless driving, ORS 811.140. Later, on the state's motion, the court entered a judgment dismissing the charges without prejudice. Defendant subsequently filed a motion pursuant to ORS 137.225(1)(b)[2] for an order setting aside and sealing the record of the arrest.[3] The state filed a response opposing defendant's motion, asserting that "[defendant's circumstances and behavior from the date [of] arrest * * * do not warrant setting aside of the arrest" under ORS 137.225(3), [4] and that setting aside the arrest would not be in the best interest of justice under [287 Or.App. 203] ORS 137.225(12).[5] However, at the hearing on the motion, the state advised the trial court that it was not relying on ORS 137.225(3) in opposition to the motion and, instead, was only "going forward on subsection (12)" of ORS 137.225. The state asserted and the court agreed that subsection (12) "does not apply only to convictions" but also to arrest records and, therefore, the question was "whether or not there is clear and convincing evidence that at this time it would not be in the best interest of justice to grant the motion." The court determined, "by clear and convincing evidence, [that] granting the Defendant's motion to set aside and seal the record of arrest [was] not in the best interest of justice, " and entered an order denying the motion.

         On appeal, defendant assigns error to the trial court's denial of her motion. She asserts that, "by its plain text, [ORS 137.225(12)] is not applicable to this case." Furthermore, she asserts that the trial court was required to grant her motion because "there was no evidence presented that her 'circumstances and behavior' from the date of her arrest to the hearing on the motion would warrant not setting aside her" May 2015 arrest. The state now agrees that ORS 137.225(12) does not apply in this case and that the [287 Or.App. 204] trial court erred in denying defendant's motion on the basis of that provision. We agree with the parties that the trial court erred in denying defendant's motion based on ORS 137.225(12). Under the circumstances of this case, including the fact that the state agreed that the court should not deny the motion based on the circumstances and behavior of the applicant from the date of arrest to the date of the hearing under ORS 137.225(3), the court should have granted defendant's motion.

         Reversed and remanded for entry of an order setting aside and sealing arrest ...


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