Expungements in Arizona
Expungement in Arizona: What You Need to Know
Are you ready for the truth? In Arizona, expungements are NOT legally available. Yet, almost every day, I am asked to help someone expunge their criminal record.
Despite no expungements but for the recent change in law for marijuana possession, Arizona expungements have a hot sister known as a Motion to Set Aside a Conviction. Set forth in Arizona Revised Statute 13-905, many felonies and misdemeanor convictions may be set aside in Arizona. If the request/motion is granted, it provides a great step towards cleaning up one’s criminal record.
Expungement vs. Conviction Set Aside in Arizona
Expungement, in the traditional sense, is the legal process whereby certain convictions are essentially erased from your criminal record. Each State has a slightly different take on expungements. Some states allow them, many states do not. As noted, but for the recent change in the law concerning convictions for marijuana possession, Arizona does not permit expungements. However, Arizona permits you to request the Court to set aside your conviction.
The biggest difference between an expungement and set aside concerns the public’s ability to see a criminal record. In the rare instance of expungement, the record is actually removed from public records. As in Arizona, if your conviction is set aside, it does not erase the conviction from your record. Rather, your record continues to show a conviction, but it shows that the conviction was set aside. Once set aside, you can honestly say that you do not have a conviction. In sum, the biggest difference is what is available to the public if they conduct a records search.
Arizona Conviction Set Aside Process Under ARS 13-905
After a misdemeanor or felony conviction, you must complete your sentence (prison or probation) and pay any fines or restitution ordered by the court. After you are completely off paper and supervision, your Arizona criminal defense attorney may help you file an application (motion) to set aside your conviction under ARS 13-905. There are certain exceptions that I will tell you about a little later, but you might be surprised by how many convictions can be set aside. Even if you have multiple convictions, they can be set aside under ARS 13-905.
Am I Eligible to Have My Conviction Set Aside in Arizona?
The first question that must be addressed is whether your case CAN be set aside. You may be eligible to have your conviction set aside under ARS 13-905 if:
1. Your sentence is complete.
Completing your sentence not only means that your probation term or prison term is over. It also means that you have fulfilled all other terms of your sentence such as paying any fines, fees, and restitution, or completing any required counseling or community service.
- Probation. If you were placed on probation, then you can only file a set-aside application after you have been discharged from probation. You should submit any applicable order discharging you from probation along with your set aside application.
- Prison. If you were sentenced to prison, then you must submit a Certificate of Absolute Discharge issued by the Arizona Department of Corrections along with your set aside application. The Certificate of Absolute Discharge shows that you have fulfilled your sentence of imprisonment and parole or community supervision. It does not provide any information about whether you have paid off all court-ordered fines, fees, or restitution.
- Fines, Penalties and Restitution. Before a judge will consider your Arizona expungement application, you must pay off all court-ordered fines, fees, or restitution.
2. You do not have a disqualifying conviction.
While expungements have their allure, most states that offer expungements are very restrictive when it comes to the types of crimes that can be expunged, usually just minor offenses and misdemeanors. This is why I call Arizona’s procedure to set aside your conviction is pretty attractive. However, if your conviction is one of the noted exceptions below, you are NOT permitted to have the matter set aside:
- Convictions involving a deadly weapon;
- Convictions involving the infliction of a serious physical injury;
- Convictions for which you must register as a sex offender or register for offender monitoring (A.R.S. § 13-3821);
- Convictions that include a finding of sexual motivation (A.R.S. § 13-118);
- Convictions involving a victim under the age of 15.
- Driving on a Suspended License (ARS 28-3473);
- Criminal Speeding, Felony Flight, Aggressive Driving, Exhibition of Speed, Hit and Run;
3. The Judge’s Discretion
Ultimately, it will be a judge who will determine if a conviction set aside is appropriate for you. As set forth by the statute, the judge may consider the following factors:
- The nature and circumstances of the offense that the conviction is based on;
- Your compliance with the conditions of probation, the sentence imposed and any state department of corrections’ rules or regulations, if applicable;
- Any prior or subsequent convictions;
- The victim’s input and the status of victim restitution, if any;
- The length of time that has elapsed since the completion of your sentence;
- Your age at the time of the conviction;
- Any other factor that is relevant to the application.
Hiring the right attorney at this stage is crucial. Experienced counsel will package together with the motion to set aside the conviction along with character and mitigating information for the court to consider. Many people make the mistake of just filing a basic request to have their convictions set aside.
The real trick is preparing the motion and submitting evidence in support of the motion that actually will make it hard for the judge to deny the motion. Many attorneys take shortcuts and file just the motion to set aside. You should always make sure that you and your attorney seek to reinstate all your rights when submitting your application to set aside the conviction. This is hard work and experienced counsel can make a substantial difference in your success.
What an Arizona Conviction Set Aside May Do
If the court grants your motion to set aside conviction, the judge will sign an order formally setting aside your conviction. Once the order is signed and entered, the Court order should release you from all penalties and disabilities resulting from your conviction. This is as close to a full expungement as you can get in Arizona.
You should be aware, however, that a conviction set aside does not apply to the Arizona Department of Transportation or the Arizona Game and Fish Department. So, it will not alter any license suspension or revocation. Also, even if set aside, if you are subsequently charged with a new crime, the court and prosecutor can still consider your prior criminal history for sentencing aggravation considerations.
Benefits of Having Your Arizona Conviction Set Aside
While not quite an expungement, having your conviction set aside can be a huge psychological and emotional win for you. Soon, you will be able to start enjoying life and feeling like you are not limited by your past. You will see:
- Improved Employment and Career Prospects. A conviction set aside does not hide from employers that you were convicted of a crime, but it will show that the conviction was set aside, and the charges against you were dismissed. Employers will look more favorably on any application when they see that you have been rehabilitated.
- Professional Licensing. If you held a professional license (such as a doctor, nurse, etc.), an Arizona conviction that is set aside may enable you to reapply and regain your license.
- Housing Opportunities. Many landlords, and even some real estate purchases, may require a criminal background check. A conviction may limit your opportunities. But, once the conviction is set aside, and disabilities and penalties hopefully no longer an issue, one must hope that previously closed doors may now be open for you.
- Child Custody. A criminal conviction may hurt you in a child custody dispute. Family law judges will take a conviction that has been set aside into consideration and may issue a more favorable ruling for you.
- Fingerprint Clearance Card. Arizona law requires many professions to have an active fingerprint clearance card prior to or as a condition of licensure, certification, or employment. For those with an existing or suspended Arizona Fingerprint Card, setting aside the underlying conviction can be helpful in obtaining a card by applying for a Good Cause Exception.
What an Arizona Conviction Set Aside Won’t Do
It is important that you understand a conviction set aside in Arizona is not an expungement. As a result, a conviction set aside can NOT do things like:
- Erase convictions from your criminal record;
- Purge or clear your arrest record;
- Destroy or seal your criminal file;
- Remove the conviction from your Motor Vehicle Division (MVD) Records;
- Prevent DPS or the Board of Fingerprinting from considering the conviction for a fingerprint clearance card.
Additionally, if you are charged with another crime, the prosecutor may be able to use the set aside conviction against you.
Also, if you’re asked about criminal convictions (like on a job application, loan or insurance), you will still need to disclose it. However, you should explain that your conviction was set aside and the charges against you were dismissed.
The Motion to Set Aside is NOT a Reinstatement of Rights:
How to Restore your Rights
If you are convicted of a felony your civil rights are automatically suspended. Civil rights include things like your right to vote, serve as a juror, and possess a gun. In Arizona, if you only have one felony conviction, your civil rights will be automatically restored as soon as you have completed your sentence, with the exception of your gun rights. To restore your gun rights, you must still apply under ARS 13-910.
Restoration of Gun Rights. If you do a motion to set aside conviction in Arizona, you can request for your civil rights, including your gun rights to be restored without doing a separate application to restore your gun rights. With most convictions, you need to wait two years after you have fully completed your sentence to have your gun rights restored.
Misdemeanor Crimes of Domestic Violence. Under federal law, if you are convicted of a qualifying misdemeanor for domestic violence you are prohibited from possessing a gun or ammunition. Even if your Arizona misdemeanor conviction for domestic violence is set aside, you must also make a separate application to restore your gun rights.
Expungements in Arizona
OK, I know I said that there weren’t really expungements in Arizona, however, there are a couple of exceptions. The exceptions may not be called “expungements” but they accomplish the same thing, your conviction is erased from your record. Here are the exceptions:
- Sex Trafficking Victims. If you are convicted of prostitution or a similar crime and it is found that you were doing it because you were a victim of sex trafficking, you may be able to get your conviction “expunged.” ARS 13-909
- Possession of Marijuana. As noted above, recent changes in Arizona law have decriminalized marijuana possession. Starting July 12, 2021, if you have an Arizona conviction for possession of marijuana on your record, you will be able to apply to have it expunged.
Arizona Conviction Set Aside Attorney
If you have been convicted of a crime in Arizona, you know how difficult a conviction can make your life. The best and only way to show potential employers, licensing agencies, and landlords that you have paid your debt to society and that you deserve a second chance is filing and receiving a formal order from the Court to set aside your conviction.
It gives you almost a clean slate and a fresh start. It is time to take control of your life and to stop being held back by your past. A conviction set aside is the way to go, but don’t go it alone. Judges don’t have to grant a motion to set aside and if it is not in proper form or properly supported with character and mitigation evidence, it will be denied.
Howard Snader is a former prosecutor and Board Certified Criminal Defense Attorney. He knows what judges look for and how to present your case to give it the best opportunity for success. Call or chat with us today. Don’t wait any longer to take those steps needed to get your life back on track.