Criminal convictions can devastate a person’s future. Even mere contacts (i.e. arrests, investigations or acquittals) with the criminal justice system can impact a person’s professional, social and financial welfare. Arizona law does provide for some remedies to mitigate the impact of a history with the criminal justice system. Many people ask the question, “Can a criminal conviction be expunged?” Arizona does not use the term expungement, but there are remedies similar to expungement. Below is a list of answers to frequently asked questions regarding these remedies for someone with a criminal history.
Can an Arizona criminal record be expunged or erased?
No. Arizona law does not recognize an expungement of a criminal conviction so that it is erased from your record. However, Arizona law does provide that a person may have the judgment of guilt “set aside.” Under Arizona Revised Statute, section 13-907, an individual who has been convicted of a crime may request a “set aside” of her conviction under certain circumstances. For someone who is convicted of a felony, a set aside can be very important because it has the effect of releasing the individual “from all penalties and disabilities resulting from the conviction” with a few exceptions. While setting aside the judgment of guilt does not erase it from occurring, it does allow a person to explain that a judge has determined that judgment of guilt should be vacated. This may be persuasive when trying to convince someone that you have moved on from the incident.
Can all Arizona criminal convictions be set aside?
Most criminal convictions can be set aside. For example, most traffic offenses, including Arizona DUI convictions and Arizona reckless driving convictions, can be set aside. However, Arizona law specifically prohibits setting aside convictions for the following offenses:
A crime involving the use of a dangerous instrument (i.e. car) or exhibition of a deadly weapon (i.e. gun, knife);
A crime involving or causing a serious physical injury;
Crimes where there has been a finding that there was a sexual motivation or a requirement of sex offender registration;
Crimes involving driving on a suspended or canceled drivers license;
A crime where the victim was a minor and also under the age of fifteen;
A violation of any local ordinance relating to standing, stopping, or operation of a vehicle.
What makes a person eligible to have a conviction set aside?
If a person is attempting to set aside a conviction that is eligible for a “set aside” under Arizona law (i.e. DUI, most felonies), she still must meet other requirements. A person convicted of a crime must have fulfilled the conditions of her probation or sentence and have been discharged by the Court. Additionally, if a person has been convicted of two (2) or more felonies and/or sentenced to prison, that person must wait two (2) full years before applying for the judgment to be set aside, to restore her civil rights, and to restore her gun rights. It is then in the judge’s discretion whether a set aside will be granted.
If I have my conviction set aside, will it still show up on a background check?
Yes, assuming it is a comprehensive background check. However, if it is an accurate background check, it should also reflect the fact that the judgment of guilt was “set aside.”
If I was wrongfully arrested, is there a way to get the record of an arrest sealed?
Yes. Under Arizona Revised Statute § 13-4051, “[a]ny person who is wrongfully arrested, indicted or otherwise charged for any crime may petition the superior court for entry upon all court records, police records and any other records of any other agency relating to such arrest or indictment a notation that the person has been cleared.” After a hearing on the petition, if the judge believes that “justice will be served” by sealing the record, the judge shall “issue the order requiring the entry that the person has been cleared on such records.” If the request is granted, then all law enforcement agencies and courts “shall not release copies of such records to any person except upon order of the court.” In addition, if a person who has notice of such order fails to comply with it, they may be liable to the person for damages. However, you should remember that these requests are by no means automatically granted, and the decision to seal is based on judicial discretion.
If an Arizona DUI conviction is set aside, does that mean I can get rid of my ignition interlock device?
No. If an Arizona DUI conviction is set aside, there is no effect on the Department of Motor Vehicles issues. Therefore, any suspension, point totals, traffic school requirements or interlock devices requirement will stay in place if a DUI conviction is set aside.
Does setting aside a conviction restore the rights I lost when convicted of a felony?
When a person is convicted of a felony, they lose certain constitutional rights such as the right to vote and the right to possess a gun. In most cases, the court has the discretion to restore those rights. Merely “setting aside” the conviction does not, in all cases, automatically restore all the rights a person had before the conviction. For example, a person’s right to vote is not restored automatically upon a second felony conviction. In that instance, a person must apply to have her civil rights restored. Furthermore, the right to own a firearm is only restored after an application for restoration of that right and specific judicial order.
DISCLAIMER: The information in this blog is NOT legal advice, nor does it establish an attorney-client relationship between you and the Koplow Law Firm. Legal advice usually varies from case to case.
If you need legal advice for a specific problem, you must consult with an attorney. For more information about Arizona Criminal Law, please contact the Koplow Law Firm.