EXPUNGEMENT

Is the existence of a conviction having a negative effect on your life? Expungement and restoration of rights pursuant to A.R.S. § 13-905 is available under Arizona law whether you have been convicted of a felony or a misdemeanor. The benefits of expungement include increased employment opportunities, the restoration of your gun rights and many others.

Setting Aside a Conviction Under A.R.S. § 13-905

If you have been convicted of a crime but have completed your sentence you may be eligible to have your Arizona conviction set aside.  A.R.S. § 13-905 deals with setting aside judgments of conviction. It says that, expect in certain exceptions, after fulfilling the conditions of your sentence, including probation, you may file an application with the judge to have the conviction set aside.

If the associated Arizona Set Aside Form and application is granted, the statute says that the judgment of guilt will be set aside, the charge will be dismissed, and you will be released from any disabilities or penalties associated with the conviction.

Is a Set Aside the Same as Expungement?

The short answer is no, a set aside is not the same as expungement. Some jurisdictions like California and Illinois, have a process known as expungement. While the precise definition will vary from state to state, the term generally means that the conviction has been completely erased. Unfortunately, there is no pure expungement in Arizona. While the set aside statute works to shield people from the effects of convictions, the process does not delete the conviction from the record like pure expungement does.

What A Set Aside Will Do:

Having your prior conviction expunged or set aside under A.R.S. § 13-905 can have the following benefits:

• Improve Employment and Career Prospects.
• Meet Professional Licensing Requirements.
• Expand Housing Opportunities.
• Improve Child Custody Situations.
• Restore Civil Liberties and Gun Rights.
• Increase Chances of Obtaining a Fingerprint Clearance Card

What A Set Aside Won’t Do:

Without pure expungement in Arizona, setting aside a conviction pursuant to A.R.S. § 13-905 still won’t:

• Erase the Conviction Entirely (akin to pure expungement).
• Purge the Record of Arrest.
• Destroy or Seal the Court File.
• Remove the Conviction from DMV Records.
• Preclude DPS or the Board of Fingerprinting from considering the conviction.

While the effect of a set aside is less than the elimination of the record of conviction, the set aside will increase opportunities. Having the conviction set aside will tell an employer or housing coordinator that you have paid your debt to society, and that a judge has acknowledged that fact. Additionally, some employment and professional licenses require that a person set aside a conviction in order to move forward with employment.

How Can Expungement Help?

Expungement or setting aside a prior conviction can have a tremendous impact on a person’s life. Generally, a set aside will lead to a restoration of your civil rights, including gun rights. Additional benefits include:

• Career and Employment. Whether you are applying for a new job or a promotion within your existing company, the presence of a criminal conviction can present a substantial barrier. Because there is no pure expungement in Arizona, having the conviction set aside will provide positive feedback after any employment background check.
• Restoring Civil Rights. With most convictions that are eligible to be set aside, any civil rights which were lost as a result of the conviction are restored after the conviction has been set aside. Only in limited instances is a separate motion is required in order to restore gun rights.
• Professional Licenses. Whether you are a doctor, nurse, teacher, pilot or real estate agent, a criminal charge or conviction can have serious implications on your professional license. If you already have a professional license your licensing agency or board may require that the conviction be set aside.  In other instances, in order to successful obtain a professional license, the licensing agency requires that the conviction be set aside to ensure that all court requirements have been satisfied. Without expungement in Arizona, setting a conviction aside for a licensed professional is a must.

Example: in order to become a licensed contractor in Arizona the Registrar of Contractors (ROC) will first conduct a ROC criminal background check.  If an applicant has been convicted of a crime, the ROC considers evidence of rehabilitation, specifically whether your previous conviction has been set aside before the granting of any license.

• Housing. In many instances, convictions for violent offenses, sex crimes, or domestic violence offenses can prevent a person from being able to rent or purchase property.  Criminal background checks are now widely used by landlords and banks when renting or buying property. Restrictions imposed by the court, HOA’s and apartment complex insurance companies often require that a conviction be set aside in order to obtain housing. If the conviction were done pursuant to a true expungement law, most background checks wouldn’t even see the conviction. However, without expungement, setting the conviction aside is necessary.
• Arizona Fingerprint Clearance Card.Arizona law requires many professions to have an active fingerprint clearance card prior to or as a condition of licensure, certification, or employment. For those with an existing or suspended Arizona Fingerprint Card, setting aside the underlying conviction can be helpful in obtaining a card of applying for a Good Cause Exception.

Expungement Eligibility – Have a Conviction Set Aside

In states that have a pure expungement law, many crimes are not eligible for expungement.  However, because Arizona does not have a pure expungement law, most convictions in Arizona can be set aside and rights can be restored. More promising is that Arizona set aside laws apply to both misdemeanors and felonies.  However, under A.R.S. § 13-905, a conviction for certain offenses cannot be set aside and others have waiting periods imposed by law.

Convictions that Cannot be Set Aside

• Driving on a Suspended License (A.R.S. § 28-3473)
• Violations of Title 28 Chapter 3 (e.g. Criminal Speeding, Unlawful Flight, Aggressive Driving, Exhibition Speed, Hit and Run.)

SIDE NOTE: DUI and Reckless Driving are Title 28 Chapter 3 violation but CAN be Set Aside.

• Convictions that Involved a Dangerous Weapon
• An Offense that Resulted in Serious Physical Injury to the Victim
• Felony Offenses Involving a Victim Under the Age of Fifteen
• An Offense with a Finding of Sexual Motivation under A.R.S. § 13-118
• Sex Offenses Requiring Registration Under A.R.S. § 13-3821

Gun Laws and Set Asides

Because Arizona does not have a pure expungement law, a set aside will generally lead to a restoration of your civil rights, including those pertaining to firearms. However, there are a few 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.

Domestic Violence Expungement & Gun Ownership

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:

1. it prohibits the sale of a firearm to that person;
2. 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 lawfully own or carry a firearm.

Expungement for Sex Trafficking Victims

Under A.R.S. § 13-909, if a person was convicted of a charge of prostitution and it is found that their participation was a direct result of being a victim of sex trafficking, then the conviction can be vacated entirely, which is basically expungement. In vacating the conviction:

• The Person is Released from all Penalties Associated with the Conviction
• Law Enforcement and Court Files have an Indication that the Conviction is Vacated
• Law Enforcement, the Prosecutor and DPS are Notified that the Conviction is Vacated
• The State Cannot use the Conviction to Enhance Future Punishment

Feldman & Royle Pro Bono Initiative

Each year, the attorneys at Feldman & Royle dedicate free legal service hours to helping those less fortunate or deserving.  As a result, individuals who meet the requirements under A.R.S. § 13-909 may qualify to have their case handled by an attorney at Feldman & Royle at no cost. Feel free to call our office to obtain further information about an expungement of your case.

Expungement Attorney in Arizona

If you have been convicted of a crime in Arizona, there are reasons why having the conviction set aside can help.

1. 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.
2. Particularly in the case of a felony convictions, 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 are living under the shadow of a prior criminal conviction, speak to an experienced expungement attorney at Feldman & Royle. The initial consultation is free.