Sealing Criminal Records and Setting Aside Convictions
On January 1, 2023, A.R.S. §13-911 went into effect, which, for the first time in Arizona, allows an adult who has been arrested or convicted to have the records of their arrest or conviction sealed. This law applies to individuals who have been:
- Arrested when no charges were filed
- Charged with a crime that was either dismissed, or for which they were found not guilty; or,
- Convicted of a crime and they have completed all the terms and conditions imposed by the court, including paying all fines and restitution.
If you were never charged, have had your charges dismissed or were found not guilty, you are eligible to have your arrest and court records sealed immediately. If you were convicted of a crime, and have completed all of the court's requirements, there is a waiting period that starts once the requirements have been completed before you can have your records sealed, as follows:
1. Ten years for a class 2 or 3 felony.
2. Five years for a class 4, 5 or 6 felony.
3. Three years for a class 1 misdemeanor.
4. Two years for a class 2 or 3 misdemeanor.
If you have a historical prior felony conviction, you must wait an additional five years before your arrest and conviction records can be set aside. If you are convicted of two offenses, you cannot apply to have the records sealed until the time periods set out above have expired for both offenses.
The Process
You must file a petition to seal all case records in the court where you were convicted or appeared for the charge, or the Superior Court in the County where you were arrested if no charges were filed.
Once the petition is filed, the court must wait thirty days, unless the prosecutor in the court where the petition is filed, and any/all victim(s) inform the court that they have no objection sooner. After thirty days, unless the prosecutor and/or victims request a hearing, the court may grant or deny the petition. The court “shall grant the petition if the court determines that granting the petition is in the best interests of the petitioner and the public's safety.”
The court may dismiss a petition that does not meet the requirements set out above without a hearing.
The Benefit, and the Limitations on that Benefit:
A person whose records are sealed pursuant to this section “may state that they have never been arrested for, charged with or convicted of the crime that is the subject of the arrest or conviction,” including giving that response to questions on employment, housing, financial aid or loan applications, unless any of the following applies:
(a) The person is submitting an application that requires a fingerprint clearance card.
(b) The sealed case records involved committing a drug offense.
(c) The sealed case records involved burglary or theft from a residential or nonresidential structure and the person is applying for a job that requires entering into and performing services inside of a residential structure.
(d) The sealed case records involved child abuse or aggravated assault and the person is applying for a job involving supervising, educating or administering care to a minor.
(e) The sealed case records involved vulnerable adult abuse and the person is applying for a job involving supervising or administering care to a vulnerable adult or a person who is at least sixty-five years of age.
(f) The sealed case records involved a violation of a DUI, or specified alcohol-related offense (5-395.01, 5-396, 5-397, 13-1814, 28-1381, 28-1382, 28-1383, 28-8282, 28-8284, 28-8286, 28-8287 or 28-8288) and the person is applying for a job involving the commercial or private operation of a motor vehicle, boat or airplane.
(g) The sealed case records involved theft, theft of means of transportation, forgery, taking the identity of another or fraudulent schemes and artifices and the person is applying for a job involving accounting, overseeing, transporting, handling or managing another person's money or financial assets.
(h) The person is applying for a position with a law enforcement agency, a prosecutor's office, a court, a probation department, a child welfare agency, the department of child safety, the department of juvenile corrections or the state department of corrections.
(i) The person is undergoing a background check for the placement with that person of a child who is in the custody of the department of child safety.
(j) The disclosure is required by a state or federal law.
(k) The disclosure is required to comply with program integrity provisions of medicare, medicaid or any other federal health care program.
In addition, all case records that are sealed may be:
1. Alleged as an element of an offense.
2. Used as a historical prior felony conviction.
3. Admissible for impeaching any party or witness in a subsequent trial.
4. Used to enhance the sentence for a subsequent felony.
5. Used to enhance a DUI or Extreme DUI sentence.
6. Pleaded and proved in any subsequent prosecution of the person by this state or a political subdivision of this state.
7. Used as a conviction if the sealed conviction would be admissible if it was not sealed.
So what is the real benefit of having your case records sealed? Once your record is sealed, anyone searching for your criminal history won't be able to find it, other than the exceptions listed above (bear in mind that the records may be removed from the court website, but stories about the arrest posted on the internet don't go away). You can also answer “No” when asked if you have been convicted of an offense, which was never possible in Arizona before for a person convicted of a crime.
Setting Aside Convictions:
Even if you are not eligible to have your conviction sealed, you may be able to have the conviction set aside. This is different than having a record sealed, in that the arrest record and conviction will still show up online, with a notation that the conviction has been set aside, and can still be disclosed pursuant to a public records request. The court records will show that the conviction has been set aside, and the charge dismissed. This is significant, for example, to the medical and nursing boards, the registrar of contractors, and may enable a driver with a CDL license to keep their license.
Once you have fulfilled the conditions of your probation or sentence, and have been discharged by the court, you may apply to the court to have the judgment of guilt set aside. In deciding whether to grant the application, the court is required to consider:
1. The nature and circumstances of the offense that the conviction is based on.
2. The applicant's compliance with the conditions of probation, the sentence imposed and any state department of corrections' rules or regulations, if applicable.
3. Any prior or subsequent convictions.
4. The victim's input and the status of victim restitution, if any.
5. The length of time that has elapsed since the completion of the applicant's sentence.
6. The applicant's age at the time of the conviction.
7. Any other factor that is relevant to the application.
If the court grants the application to set aside the judgment of guilt, the court’s order must include a “certificate of second chance” if you have not previously received a previous certificate of second chance and you were convicted of: 1) a misdemeanor; 2) a class 4, 5 or 6 felony and at least two years have elapsed since you fulfilled the conditions of probation or sentence; or 3) a class 2 or 3 felony and at least five years have elapsed since you fulfilled the conditions of your probation or sentence. The certificate of second chance:
1. Releases you from all barriers and disabilities in obtaining an occupational license that resulted from the conviction if you are otherwise qualified.
2. Provides some protection to an employer for hiring you.
3. Provides some protections to a landlord who leases property to you.
You cannot get a conviction set aside if:
1. You were convicted of a dangerous offense.
2. You were required to register as a sex offender.
3. You were convicted of an offense where there was a finding the offense was sexually motivated.
4. You were convicted of a felony offense in which the victim is a minor under fifteen years of age.
Getting the conviction set aside does not relieve you from a driver's license suspension ordered by the Arizona Department of Transportation, or restrictions imposed by the game and fish commission for certain offenses.
According to the Arizona Supreme Court, if your conviction is set aside, you cannot say you were not convicted of the offense. You must disclose that you were convicted, and may add that the conviction was later set aside
A conviction that is set aside may still be:
1. Used as a conviction if it would be admissible if it had not been set aside.
2. Alleged as an element of an offense.
3. Used as a prior conviction.
4. Pleaded and proved in any subsequent prosecution of the person by this state or any political subdivision of this state for any offense.
5. Used by the department of transportation in enforcing license suspension actions.
If you are interested in having your record sealed, or conviction set aside, contact the experienced attorneys at St. Louis Huffman Law to guide you through the process.
