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2023 Update - Criminal Record Set Aside, Expungement or Seal

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A criminal conviction can have life-altering consequences long after you have completed your sentence with the court. A conviction on your record can impact employment, professional licenses, education, housing, and exercising your basic civil rights like voting or owning a gun.

Arizona’s laws regarding clearing your record are unique and complex. And they are becoming even more complicated in January 2023 with a new law going into effect.

Because of the complexities associated with these new laws, you are strongly advised to talk to a defense attorney from Colburn Hintze Maletta. When your record is on the line, you need a team with decades of experience handling criminal defense cases.

Until 2021, Arizona lacked a formal system for expunging or sealing criminal records; the only available option was a Set Aside, which removes some penalties but leaves the conviction visible. However, in 2020, Prop. 207 was passed, allowing for expungement of certain low-level marijuana convictions. A new law effective in January 2023 will permit sealing of various types of criminal records, hidden from public view but still accessible to certain agencies. This can apply to both convictions and dismissed charges, subject to certain conditions and waiting periods defined under ARS 13-911. While Set Asides are governed by ARS 13-905 and can be applied for after completing all sentence obligations, they have their limitations and exceptions, such as not applying to certain serious or sexual offenses. Moreover, a Certificate of Second Chance can be granted in many cases where a Set Aside is approved, easing the path to obtaining occupational licenses.

Do You Have a Criminal Record?
Learn How to Set-Aside, Expunge or Seal Your Record.

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Cleaning Up Your Arizona Criminal Record

Arizona’s Complicated Legal Scheme: Set Aside, Expungement, and Seal a Record

Up until 2021, Arizona did not have a mechanism to expunge or seal any criminal conviction. The only option under Arizona law was to seek a Set Aside. If a motion to set aside is granted, “the court shall set aside the judgment of guilt, dismiss the complaint, information or indictment and order that the person is released from all penalties and disabilities resulting from the conviction” except for any penalty imposed by the Department of Motor Vehicles or the Game and Fish Department.

A conviction that has been Set Aside can still be used as a prior conviction to enhance a subsequent sentence.

In 2020, voters passed Arizona Prop. 207, which legalized certain adult recreational use of marijuana. Under Prop. 207, certain prior marijuana convictions could be expunged.  The expungement process applies only to certain low-level marijuana convictions pre-dating November 30, 2020. Expunged records are no longer accessible to the public, courts, or law enforcement for any reason.

Beginning in January 2023, a new Arizona law will allow eligible convictions and criminal records to be sealed. Sealed records will be hidden from public view but still accessible to criminal justice agencies and certain employers for sensitive positions.

Sealing a record under this new law can apply to a conviction and a record of a charge or arrest that was later dismissed without a conviction. Below, we will discuss each of these in more detail.

How to Get a Criminal Record Set Aside

Under ARS 13-905, once you have fulfilled all the obligations of your sentence or probation and you have been discharged by the Court, you can apply to have your conviction set aside.

You can apply to set aside any conviction, misdemeanor or felony, except for the following:

  • A dangerous offense.
  • An offense that requires or for which the Court ordered sex offender registration.
  • An offense for which there has been a finding of sexual motivation.
  • A felony offense in which the victim is a minor under fifteen years of age.

The Court considers several factors when deciding whether to grant a Set Aside, including:

  • The nature and circumstances of the offense that the conviction is based on.
  • The applicant’s 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 the applicant’s sentence.
  • The applicant’s age at the time of the conviction.
  • Any other factor that is relevant to the application.

If a motion to set aside is granted, “the court shall set aside the judgment of guilt, dismiss the complaint, information or indictment and order that the person is released from all penalties and disabilities resulting from the conviction” except for any penalty imposed by the Department of Motor Vehicles or the Game and Fish Department.

It’s important to know that even if your conviction has been Set Aside, it is not “erased” or “sealed.” That conviction is still visible to law enforcement, the courts, employers, and anyone else looking at your criminal history.

Once a conviction has been Set Aside, the Arizona Department of Public Safety, the agency that “holds” all the criminal records for the State of Arizona, will note on your official criminal history that you had a conviction and that conviction was later set aside.

It’s also important to note that you can only ask the Court to Set Aside a conviction. If you were charged, but that charge was later dismissed, or you were acquitted at trial, or if you were arrested but never charged, the Set Aside law does not apply at all.

What is a Certificate of Second Chance?

Under an amendment to the Set Aside law that became effective January 1, 2022, in many instances, if the Court grants your Motion to Set Aside, it can also issue a Certificate of Second Chance, which “releases the person from all barriers and disabilities in obtaining an occupational license issued under Title 32 that resulted from the conviction if the person is otherwise qualified.”

In other words, a Certificate of Second Chance can make it possible to obtain a professional or occupational license.

A Certificate of Second Chance will be granted if you haven’t previously been granted a Certificate of Second Chance, you’re having a misdemeanor set aside, you’re having a class 4, 5, or 6 felony set aside, and at least 2 years have passed since you completed your sentence, or you’re having a class 2 or 3 felony set aside and at least 5 years have passed since you completed your sentence.


Expungement of Marijuana Convictions – ARS 36-2862

As of July 12, 2021, pursuant to Prop 207, you can have certain marijuana offenses expunged. Under ARS 36-2862, you can petition the Court to expunge any marijuana conviction involving:

  • The possessing, consuming, or transporting of 2.5 ounces or less of marijuana, of which less than 12.5 grams is marijuana concentrate.
  • The possessing, transporting, cultivating, or processing of no more than six marijuana plants at the individual’s residence for personal use.
  • The possessing, using or transporting of paraphernalia related to the cultivation, processing, manufacture, or consumption of marijuana.

Expungement under ARS 36-2862 includes arrests, convictions, and other marks on the person’s record connected to the enumerated marijuana crimes.

This new law provides a true expungement, meaning the record will be erased and only visible to law enforcement officers and the courts in specific situations.

Expungement under ARS 36-2862 does not apply to arrests or convictions relating to the sale or distribution of marijuana.

Arizona’s New Record-Sealing Law – How to Seal Your Record

On July 9, 2021, the Arizona Legislature passed Senate Bill 1294. Another new expungement law in Arizona, Senate Bill 1294, was passed on July 9, 2021. This bill created Arizona’s first-ever record-sealing law.

Under the newly created ARS 13-911, an individual can file a petition to have his or her case records related to a criminal offense sealed if they meet certain conditions.

This new law, which goes into effect on January 1, 2023, provides a pathway to have your criminal record (not just convictions but also arrests and charges that resulted in dismissals) completely sealed and erased entirely from public view.

You can petition the Court to seal your record under ARS 13-911 if:

  • You were convicted of a crime and completed all the terms and conditions of the court-imposed sentence.
  • You were charged with a criminal offense, but the charge was then dismissed, or it resulted in a not-guilty verdict at trial.
  • You were arrested for a criminal offense, but no charges were ever filed.

There are statutorily imposed waiting periods that you must adhere to before asking the Court to seal your record. These include:

  • Ten years for a Class 2 or Class 3 felony.
  • Five years for a Class 4, 5, or 6 felonies.
  • Three years for a Class 1 misdemeanor.
  • Two years for all other misdemeanors.

If an individual has a prior felony conviction on their record, an additional five years is added to the existing waiting period. If they have two or more convictions, then they cannot request the record to be sealed until the required time period has passed for each conviction.

There are several exceptions to this new record-sealing law. Not all offenses qualify to be sealed under A.R.S. §13-911, in particular:

You Need an Experienced Attorney to Help Clear Up Your Criminal Record

Arizona’s laws regarding setting aside, expungement, and sealing records are complex. You need an experienced attorney to help you navigate the best path forward to clearing your record and reclaiming your life.

That is why the defense attorneys at Colburn Hintze Maletta are here to aggressively fight for your rights.

Having your record sealed, set aside, or expunged can open up an endless amount of other opportunities that might not have happened due to an unfortunate criminal conviction.

Call us day or night to set up a free consultation so we can discuss your options and come up with the best strategy to secure your future. Call (602) 825-2500 now.

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