Expungements and Set-Asides in Arizona
Sept. 23, 2022
After a person is convicted of a crime, they have a criminal record which can present problems when trying to obtain a job, professional license, or an apartment. Although not available in all circumstances, getting a misdemeanor or felony conviction either set aside or expunged can alleviate some or all of the personal and professional challenges that are often associated with having a criminal conviction on your record.
What is Expungement?
When a criminal conviction is "expunged," it is completely removed from a person's criminal record so that they are generally treated as though the case never existed. Historically Arizona did not offer expungement for any criminal convictions, but expungement is now available for certain marijuana-related convictions due to the passage of Proposition 207 ("the Arizona Smart and Safe Act") in 2020.
As of July 12, 2021, anyone who was arrested for, charged with, or adjudicated or convicted of certain marijuana-related offenses may petition the court to have that record expunged under A.R.S. § 36-2862.
What Happens if Expungement is Granted?
Several things happen when a criminal conviction is expunged, including:
The record of the conviction is sealed with the court and the Arizona Department of Public Safety;
The person's civil rights are fully restored (as long as those rights are not restricted by any other convictions), including the right to possess firearms;
In future criminal cases against the person, the prosecutor and the court may not use the expunged conviction against the person for any reason; and
The person may state that they were never arrested for, charged with, adjudicated or convicted of, or sentenced for the crime that is the subject of the expungement.
What Happens if Expungement is Denied?
If a request for expungement is denied, that ruling may be appealed (as long as the appeal process is initiated properly and timely).
What is a Set-Aside?
While Arizona only offers expungement for certain marijuana-related convictions, many other misdemeanor and felony convictions may be "set aside." Setting aside a conviction does not remove the case from the person's criminal record, but the conviction is vacated, the case is dismissed, and the person's civil rights are restored (if they were previously taken away). A set-aside essentially signals that the convicted person has completely complied with the terms of their probation or sentence, which can provide limited relief to a person whose criminal conviction is interfering with their attempts to get a job, professional license, or apartment.
Pursuant to A.R.S. § 13-905, a person can apply to have a conviction set aside by the court once they have fulfilled all conditions of their sentence including any probation. Judges have discretion to grant or deny the request or order a hearing to be set.
What Are the Benefits of Applying for a Set-Aside?
If a person has a felony conviction that does not qualify for an automatic restoration of civil rights pursuant to A.R.S. § 13-907, the set-aside application can also be used to apply for restoration of civil rights (e.g. right to vote, right to sit on a jury). Furthermore, even if the person qualifiesfor an automatic restoration of civil rights, automatic restoration does not include the right to possess a firearm.
After a misdemeanor or felony conviction has been set aside, the criminal record will still exist but the person will likely have better chances of securing housing, employment, and professional licenses. The Arizona Department of Public Safety will also update your record to show that the conviction has been set aside. Furthermore, if somebody looks up your criminal case in online public court records, the case outcome will show as “set aside” instead of “guilty/conviction.”
What Happens if a Set-Aside is Granted?
When a conviction is set aside, the court releases the convicted person from most or all penalties associated with the conviction, with several notable exceptions for certain traffic-, hunting-, and fishing-related offenses. Some felonies do not qualify for set-asides, such as dangerous offenses, some sexual offenses, and offenses where the victim was under 15 years old.
A person applying for a set-aside can also apply for a "Certificate of Second Chance," which the court must grant if: (1) it grants the set aside, (2) the person has not previously received a Certificate of Second Chance, and (3) the conviction is for a misdemeanor or certain felonies, and a certain amount of time has passed since all terms of the criminal sentence were completed. A Certificate of Second Chance allows the recipient to apply for certain occupational licenses, and also gives protections to any employer hiring ex-offenders and persons/entities that provide housing for ex-offenders.
What Happens if a Set-Aside is Denied?
If denies an application for a conviction to be set aside, the person with the conviction may be able to reapply in the future when more time has passed since the conviction.
The 928 Law Firm is Here for You
If you or someone you know has an Arizona felony or misdemeanor conviction and wants to seek a set aside or expungement, contact The 928 Law Firm right away to schedule a free consultation. We look forward to serving you.