RESTORATION OF CIVIL RIGHTS

Is your felony conviction still preventing you from exercising certain rights even though you have already completed your sentence? Depending on the type of conviction and how long it has been since you completed your sentence, you may be eligible to restore the rights you lost when you were convicted of a felony in Arizona. These important rights include your voting rights and your gun rights. But having your gun rights restored in Arizona is a different process from having your other civil rights restored, so make sure you file all appropriate applications to meet your needs. Additionally, you could face serious charges if you possess a firearm as a prohibited possessor without your gun rights restored.

Civil Rights Lost When You Are Convicted of a Felony

Under ARS 13-904, when you are convicted of a felony, you lose certain civil rights, including:

  • Your right to vote;
  • Your right to hold public office of trust or profit;
  • Your right to serve as a juror;
  • Your right to possess a firearm.

This means that when you are convicted, then you become a prohibited possessor and are not allowed to possess a gun without your gun rights restored. Being caught with a gun when a someone is a prohibited possessor will result in a charge of felony gun possession or misconduct involving weapons which is a class 4 felony.

SIDE NOTE: You do not lose your civil rights when you are convicted of a misdemeanor offense. The only exception to this is when you are convicted of a misdemeanor crime of domestic violence. This is because, under federal law, individuals with a conviction for a qualified misdemeanor crime of domestic violence are not allowed to possess firearms. But if the Arizona misdemeanor crime of domestic violence is set aside, then the federal prohibition against possessing a firearm does not apply. Read more about Restoring Gun Rights After Domestic Violence Misdemeanor here.

SIDE NOTE: Your civil rights are lost when you are convicted of a felony. However, even before you are convicted, the judge can order certain conditions of your release terms, such as a requirement that you not possess a gun. Additionally, if you are placed on probation, the judge can order that you not possess a gun as a probation term. You must follow any order that you not possess a gun as a condition of release or probation.

Automatic Restoration of Civil Rights After First Felony (But NOT Gun Rights)

According to ARS 13-907, if you have only been convicted of one felony offense, then your civil rights (except your gun rights) are automatically restored after you are discharged from probation or after you received an absolute discharge from prison. This means that you do not have to file an application to restore your civil rights, except for your gun rights.

You must also have paid off any victim restitution ordered in your case. But any other unpaid court financial obligations should not prevent the automatic restoration of civil rights (except your gun rights cannot be automatically restored).

However, even when your other civil rights are automatically restored, you still remain a prohibited possessor. You must still apply to have your gun rights restored under ARS 13-910 or have your gun rights restored through a conviction set aside under ARS 13-905.

Restoration of Gun Rights

In Arizona, there are two ways to have your gun rights restored:

  1. Apply for the restoration of gun rights under ARS 13-910, or
  2. Apply to have your conviction set aside through Arizona’s version of expungement under ARS 13-905, which automatically restores your gun rights in certain circumstances.

Restoration of Gun Rights Under ARS 13-910

ARS 13-910 is Arizona’s law that deals with applying for the restoration of gun rights. Even if you are eligible to have your gun rights restored, the decision to restore your gun rights is completely up to the judge under this law.

You can apply to have your gun rights restored whether you have one or multiple felony convictions on your record. But you must meet the following requirements to be eligible for the restoration of gun rights:

  1. Your conviction cannot be a disqualified conviction by being a dangerous offense under ARS 13-704. Note: You also cannot apply to restore your gun rights if you have a conviction out of another state that would have been a dangerous offense under ARS 13-704 if it had been committed in Arizona.
  2. If your conviction was for a serious offense under ARS 13-706, then you cannot file an application until 10 years after you were discharged from probation or received an absolute discharge from prison. Note: You also have to wait 10 years if you have a conviction out of another state that would have been a serious offense under ARS 13-706 if it had been committed in Arizona.
  3. If your conviction was for any other felony offense, then you cannot file an application until two years after you were discharged from probation or received an absolute discharge from prison.

Automatic Restoration of Gun Rights with Set Aside Conviction Under ARS 13-905 

Although Arizona does not have a true expungement process, Arizona allows for the setting aside of convictions for both misdemeanors and felonies under ARS 13-905. Under certain circumstances, a set aside conviction leads to the automatic restoration of gun rights.

A set aside conviction can provide both personal and professional benefits, such as increased employment opportunities. So, if you are qualified to have your conviction set aside, you should discuss with your expungement lawyer or restoration of civil rights lawyer which process best suits your circumstances. This is because you may be able to apply to have your conviction set aside without having to file a separate application for the restoration of gun rights.

To learn more about who qualifies for expungement under ARS 13-905 for a set aside conviction, read more about Arizona’s version of expungement.

If your conviction is set aside, then your gun rights should be automatically restored under ARS 13-905(J) as long as the following requirements are met:

  • Your conviction was not for a dangerous offense under ARS 13-704, and
  • Your conviction was not for a serious offense under ARS 13-706.

This means that, with a conviction set aside, you do not have to wait the usual two years before you can apply to restore gun rights under ARS 13-910.

Restoring Gun Rights After Domestic Violence Misdemeanor Convictions

In Arizona, misdemeanor convictions do not cause you to lose your civil rights, including your gun rights. However, there is a big exception for misdemeanor convictions of domestic violence. This is because under federal law 18 USC 922(g)(9), if you are convicted of a qualifying misdemeanor crime of domestic violence in any court (federal, state, or tribal), then you are not allowed to possess a gun or ammunition. This federal law is called the Lautenberg Amendment.

The only way for restoring gun rights after getting domestic violence misdemeanor convictions is is by setting aside the conviction under ARS 13-905. This is because under federal law 18 USC 921(a)(33)(B), the federal prohibition against firearm possession does not apply to convictions that have been set aside.

NOTE:  While your case is pending or while you are serving your sentence for a misdemeanor conviction, a judge can still impose certain conditions of your release terms or sentence terms. For example, the judge may require that you not possess a gun while on release during your case or while you are on probation for your conviction. But when your case is over, a misdemeanor conviction does not suspend your civil rights like a felony conviction does, except for misdemeanor convictions of domestic violence.

Restoration of Civil Rights Under ARS 13-908

 If you only have one felony conviction and do not qualify for the automatic restoration of civil rights under ARS 13-907 because you still owe victim restitution, then you can still apply to restore civil rights under ARS 13-908. But the court will want an explanation as to why you have not fully paid off victim restitution (or any other court fines and fees).

 Also, if you have two or more felony convictions on your record, then you must file an application to restore civil rights under ARS 13-908. If you have multiple felony convictions, then a separate application must be filed for each felony case.

You may only apply to restore civil rights under 13-908 after:

  • You have been discharged from probation; or
  • At least two years have passed since you received an absolute discharge from prison, if you were sentenced to prison.

Federal Felony Convictions

If you were convicted of a felony in federal court, then you may apply for the restoration of civil rights after felony conviction in the county in which you currently live. But a state court cannot restore gun rights or set aside convictions for a federal felony conviction. And, unfortunately, currently the only way for the restoration of gun rights for federal felons is through a presidential pardon.

You must submit copies of the following documentation regarding your federal felony conviction along with your application for the restoration of civil rights after felony conviction:

  • If you were placed on probation, then you must submit an Affidavit of Discharge from the judge who discharged you from probation.
  • If you were sentenced to prison, then you must submit a Certificate of Absolute Discharge from Federal Bureau of Prisons.
  • Indictment or complaint.
  • Plea agreement.
  • Sentencing paperwork.
  • Proof of notification of your application to restore civil rights to the federal prosecuting agency by certified mail receipt.

Out-of-State Convictions

If you have an out-of-state conviction, those state’s laws and procedures apply to the restoration of civil rights. So, you would have to restore civil rights in the state in which you received the felony conviction.

Penalties for Possessing a Gun Without Gun Rights Restored

If you possess a gun without your gun rights restored, then you are considered to be a prohibited possessor under Arizona law and face serious consequences. You could be charged with misconduct involving weapons, which is a Class 4 Felony under Arizona law.

If convicted for misconduct involving weapons, you face 1 to 3.75 years in prison. Depending on the type and how old your prior felony conviction is, your prison sentence could be increased to 2.25 to 7.5 years. If you have multiple prior felony convictions on your record when you are convicted for misconduct involving weapons, then your sentence is even further increased to 6 to 15 years in prison.

SIDE NOTE: Actual possession or constructive possession of a firearm are both considered possession of a firearm. This means that you are still in possession of a gun even if you lock your gun in a safe. Depending on the circumstances, it also means that you could be in possession of a gun even if the gun is legally registered to someone else. So, if you are prohibited possessor either through a court order prohibiting the possession of firearms or because your gun rights have not been restored, then it is important to ensure that you are not in actual or constructive possession of any firearm.

Restoration of Civil Rights Lawyer

Contact us to discuss your individual situation and to determine what options are available to you. The lawyers at Feldman & Royle can help you with your restoration of civil rights and the restoration of gun rights. Call now for a free consultation to determine whether you are eligible to apply to restore your gun rights or to set aside your convictions.