Who is Eligible to Have a Conviction Set Aside?
The set aside law applies to both misdemeanors and felonies, although there are some exceptions. The law does not permit set asides for certain offenses, and imposes waiting periods for others. In most cases, however, a conviction will be eligible for a set aside under Arizona law.
What is the Difference Between Set Aside and Expungement?
In some jurisdictions, the law refers to a process known as “expungement.” While the precise definition will vary from state to state, the term is generally used to denote the fact that the conviction has essentially been erased. There is no expungement law in Arizona, and while the set aside statute works to shield people from the effects of convictions, the process does not delete the conviction from the record.
As a result, even after your conviction has been set aside, if you fill out an employment application that asks about prior convictions, you must answer the question in the affirmative. However, you can also add that the conviction has been set aside and dismissed by order of the court, which order should be included in your current record. While the effect is less that the elimination of the record of conviction, the set aside will advise an employer that you have paid your debt to society, and that a judge has acknowledged that fact and issued an order that the conviction be set aside. Additionally, some employment and professional licenses require that a person set aside a conviction in order to more forward with employment.
Restoration of Civil Rights
A felony conviction carries with it certain effects beyond the conviction and the sentence imposed. Under A.R.S. 13-904, certain rights of anyone convicted of a felony are “suspended” including the following:
- Your right to vote.
- Your right to hold public office.
- Your right to serve on a jury.
- Your right to possess a gun or other firearm.
If you are a convicted felon, you may still apply for a restoration of these civil rights. The application may be made after you are discharged from probation or two years after you are discharged from prison. As in the case of set asides themselves, there are limitations, most of which relate to the right to possess or carry a gun.
Gun Laws and Set Asides
Generally, a set aside will lead to a restoration of your civil rights, including those pertaining to firearms, but there are exceptions. Your gun rights may not be restored, or additional limitations may apply, under the following circumstances, among others:
- Dangerous Offenses. Offenses involving deadly weapons or dangerous instruments, as well as those where the defendant intentionally inflicted serious physical injuries on a person. Disqualified from restoration of gun rights.
- Serious Offenses. Murder, manslaughter, sexual assault, dangerous crimes against children, armed robbery, certain sex crimes involving children, and others. Ten-year waiting period before applying for restoration of gun rights.
- Other Felonies. Two-year waiting period after discharge from imprisonment.
Other limitations also exist.
Gun Laws and Misdemeanor Domestic Violence – The Lautenberg Amendment
Certain people are classified in Arizona as “prohibited possessors.” This means that they are prohibited from possessing a firearm and/or certain other weapons. Anyone who has been convicted of misdemeanor domestic violence is a prohibited possessor during the term of probation. If that were the only issue, then the completion of and discharge from probation would put an end to the problem. But in this case another law applies.
In 1997, the federal government passed the Domestic Violence Offender Act, commonly known as the “Lautenberg Amendment.” The law contains two provisions applicable to those convicted of misdemeanor domestic violence: first, it prohibits the sale of a firearm to that person; and second it makes the person a prohibited possessor. The federal law goes on to say that these gun rights can be restored if the conviction has been expunged or set aside. Failure to consider the federal law could lead to issues regarding your ability to own or carry a firearm, and could subject you to additional charges.
Phoenix Set Aside Attorney
If you have been convicted of a crime in Arizona, there are reasons why having the conviction set aside can help you. First, if you apply for a job, you can tell your prospective employer that you have done everything that was required of you, that the event was the result of a past mistake, and that a judge has determined that the conviction should be dismissed. This is important even when the conviction is a misdemeanor, perhaps a DUI, and your employer wants to know that you have taken steps to turn your life around.
Second, particularly in the case of a felony conviction, your right to own or carry a gun, your right to vote, your right to run for office, and your right to serve on a jury, all of which were suspended as the result of your conviction, may be restored.
If you a living under the shadow of a prior criminal conviction, speak to the attorneys at Feldman & Royle. The initial consultation is free.