dissenting.
Because I am unable to perceive any rational basis for the legislature’s permitting one convicted of criminal mischief in the first degree to expunge his record, but denying the right of expunction to one who is merely arrested, but not formally charged (and thus not convicted), for the same offense, I would affirm the trial court’s order directing the expunction of plaintiff’s arrest record. Unless ORS 137.225 is so construed, it suffers from constitutional infirmity by denying to plaintiff the equal protection of the laws guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 20 of the Oregon Constitution.
The majority devotes approximately three-quarters of its opinion to deciding that courts do not have inherent authority to expunge or seal criminal records, and after concluding that they do not, states that the issue "strikes us as a red herring.” 50 Or App at 15. It then devotes two paragraphs to disposing of the equal protection *17problem, which, in my judgment, is the real issue in the case.
I agree with the majority that no one has a constitutional right to rewrite history by having criminal records expunged or sealed. The wisdom of permitting such relief is for the legislature. However, once the legislature . has decided to permit it in particular cases, there must be a rational basis for permitting it in one case and not in another. We have, for example, held that the legislature may allow expunction of "what have been treated by legislation as less serious offenses, while denying it for those which have been treated as more serious.” State v. Thompson, 20 Or App 61, 65, 530 P2d 532 (1975).
On the other hand, we have held that even though the statute does not permit expunction of convictions subsequently held invalid, the convicted person is entitled to have the record of the convictions, and the arrest relating thereto, expunged. State v. Hammond, 34 Or App 893, 580 P2d 556 (1978). There was less reason in Hammond to allow expunction than there is here: Hammond had admitted his guilt to three serious offenses under a statute (ORS 167.210) subsequently held unconstitutional, and had not shown that his behavior since the date of conviction warranted expunction. (ORS 137.225(3)). Here, the plaintiff has neither admitted his guilt nor has it been established that he committed the wrong of which he was suspected. Further, the statute expressly includes expunction of the arrest records relating to the subsequent conviction; it does not include expunction of invalid convictions.
How can it be said that there is a rational basis for permitting expunction of the arrest record of one subsequently convicted of the offense for which he or she was arrested, but not permitting expunction of the arrest record of one not so convicted?
The majority rests its decision on the proposition that there is a distinction between a conviction and an arrest. In doing so, it minimizes the fact that when the conviction is expunged, the arrest record is expunged along with it. To point out that there is a difference between an arrest and a conviction is to belabor the obvious: a conviction establishes beyond a reasonable doubt that the person *18convicted committed a specified offense against the state; an arrest simply means that an officer had probable cause to believe that the arrestee committed certain acts. An officer may have probable cause to arrest any number of persons for a crime known to have been committed by only one person. That distinction does not demonstrate a rational basis for treating one whose wrong has been established beyond a reasonable doubt more favorably than one who has only been suspected of committing the same wrong. The only rational basis for treating one more favorably than the other militates in favor of permitting expunction of the arrest record rather than the conviction. The legislature has done the opposite, and what the majority holds the statute does is analogous to requiring affirmative action programs favoring white male Anglo-Saxon protestants.
It is not our function to pass on the advisability of expunction; it is, however, our duty to see that where the legislature has permitted expunction in certain circumstances, the remedy be available on an equal basis in the absence of a rational premise for granting it to one, but not the other. The majority does not dispose of this question persuasively; rather its rationale would require the arrest record to stand, with a notation that the conviction was expunged, whenever expunction of the conviction is ordered. If that were the legislative mandate, which it is not, the equal protection problem would be obviated.
In the context of this case, I would hold that ORS 137.225 denies plaintiff the equal protection of the laws unless it requires the expunction of his arrest record. Accordingly, I respectfully dissent.