Starting Over: Clean Your Criminal Record
You completed your sentence successfully. You have been released from probation. But now you have issues with employment, finding housing, or just want to make sure that your rights have been reinstated. Everyone’s situation is different, but there are steps you can take to clean your criminal record and have your rights are reinstated.
This post address three primary situations:
- making sure your conviction is reduced to a misdemeanor when possible;
- setting aside your conviction; and
- re-instating your rights.
Some or all of these issues may apply to your case. You should discuss your situation with experienced counsel.
In all cases, your motion or petition must be done in the court of conviction. If your conviction was outside Arizona, you would still need to return to the court of conviction for relief.
Reducing Your Conviction: From Felony to Misdemeanor
In Arizona, it may be possible to have your felony reduced to a misdemeanor. To be eligible for the reduction, you must have originally received a conviction for an “undesignated felony.” When sentenced to the undesignated offense, you must complete the probationary terms successfully. If the only probation failure was financial terms being unpaid, you might still be able to request the reduction.
Once probation is completed, probation should submit the formal request to the Court to reduce the offense to a misdemeanor. Then once the Court receives the request, you must make sure the Court signs the order reducing the offense to a misdemeanor. Once designated a misdemeanor, you technically have no issues reinstating your rights as you finally can say you never were convicted of a felony. (Gun rights might still be a problem for convictions of domestic violence).
Many clients make the mistake of ASSUMING the case was reduced to a misdemeanor. But you must make sure that probation files the paperwork and the court subsequently grants the request. Then and only then you will have a misdemeanor.
If probation fails to process the necessary paperwork, you will need to file the appropriate motion to reduce your offense and designate it a misdemeanor.
Reinstating Your Rights: Petitioning the Court
If you have a misdemeanor conviction, you should not need to reinstate any rights. There would be exceptions for gun rights if your prior conviction involved domestic violence.
If a felony, then you lost your rights (including your rights to vote, sit on a jury, to challenge a search and seizure in many instances, and your gun rights to name a few). Once you have completed your sentence either via being discharged from prison or upon completing probation, you can petition the court to reinstate your rights. Your basic rights should be reinstated when you are no longer under any government supervision.
Upon completing probation, probation should submit the appropriate paperwork to the court. It is your responsibility to make sure the court signs the order reinstating your rights. If you have completed a prison term, then upon absolute discharge from prison, you can file the appropriate motion with the court.
Setting Aside Your Conviction: Expunging a Criminal Record
I am frequently contacted about expunging one’s criminal record. Arizona no longer recognizes expungement. In those states that allow for expungement, it means that your record is removed from the system. (It is never truly gone, and even if expunged, can be used if you are again brought into the criminal justice system). If expunged, there should be no public record of any court action against you.
Arizona long ago removed expungement as a possibility. Now, the only post-conviction relief you might obtain is the “setting aside” of your conviction.
Set forth in A.R.S. 13-907, with some listed exceptions, anyone convicted of a criminal offense, upon completing the conditions of probation or satisfying the terms of their sentence, may apply to the sentencing court to have the judgment of guilt set aside. If the judge grants the application to set aside the judgment and conviction of guilt, the person shall be released from all penalties and disabilities resulting from the conviction other than those imposed by the Department of Motor Vehicles and other administrative agencies.
There is no clear definition of what is considered the “release of all penalties and disabilities.” You will have a public record that shows the criminal case, the guilty plea or conviction at trial, and a separate record that the conviction was formally set aside. Even after being set aside, I have still seen client’s face employment, housing and even credit issues.
Which Crimes Are Eligible for Expungement?
In Arizona all cases are eligible to be set aside EXCEPT if you were convicted of the following crimes:
- involving the infliction of serious physical injury.
- involving the use or exhibition of a deadly weapon or dangerous instrument.
- for which one is required or ordered by the court to register as a sex offender
- for which there has been a finding of sexual motivation.
- in which the victim is a minor under fifteen years of age.
- in violation of specific motor vehicle code violations.
Understanding the Expungement Process
The process from the filing of the motion until a ruling normally takes 30-90 days depending on the court. In most cases, the court will issue its ruling without a formal hearing.
Although the record cannot be expunged, setting aside the conviction may help with employment records and credit histories. If asked “Do you have a conviction” on any application, you can honestly respond, “No.” If asked, “Have you ever been convicted” you can again honestly answer, “No.” As you are not supposed to suffer any penalty or disability, I would argue that is a true answer. The “safer” answer to the second question is to answer “yes, but it was set aside.”
I have successfully defended thousands of felony and misdemeanor cases for more than two decades. When you are the target of an investigation, please don’t hesitate to call.
Contact the Law Office of Howard A. Snader Today
If you have concerns about your criminal record or wish to speak to counsel in Arizona, do not hesitate to contact Howard Snader. Mr. Snader is a Board Certified Criminal Law Specialist. If you or anyone you know has been accused of any felony or misdemeanor, please call him at (602) 737-0293, or email him at Howard@SnaderLawGroup.com.