The opinion
KENNETH L. BUETTNER, Judge,
dissenting.
19 The bright line test suggested by the state: that if no evidence is considered by the court, the dismissal cannot be on the merits, is incompatible with the balance of 22 O.S. Supp.2009 § 18. For example, the Legislature has provided for expungement of an arrest record if an accused is acquitted, or factual innocence is established by DNA, or the crime was committed by another person who stole the accused's identity. If the State's bright line test was intended by the Legislature, then the State's decision to dismiss charges, on the merits, before preliminary hearing a) because another person committed the crime, e.g., had been arrested and confessed, or b) the sole complaining witness had recanted so that there was no evidence a crime had been committed, would mean no expungement of the arrest record was possible. Under either of these situations, the *1010 dismissal could be justified in the Best Interest of Justice. Clearly, such dismissals would relate to the merits as opposed to only a procedural issue, ie., witnesses could not be located, or failed to appear, or evidence suppressed due to a bad search. In fact, the preliminary hearing could have started and evidence received, but due to a critical witness' inability to appear, the State could dismiss the charges. Would that dismissal be on the merits?
1 10 I would hold that the underlying reason for the dismissal be shown in order to determine whether $ 18(5) applied, whether the preliminary hearing had occurred or not. If the dismissal was grounded on a procedural issue, then expungement would not be available. However, if the dismissal was based upon the merits, such as recantation of a witness to the effect that no crime had occurred, then expungement would be available.
11 In this case, we can discern that there was a single complaining witness, a minor, that recanted. The state would argue that its decision to request dismissal could not be on the merits because the trial court never heard any evidence. I do not read § 18(5) so restrictively. I would reverse and remand for further proceedings to consider the underlying basis for the dismissal and the proceedings under § 19.