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Who Is Eligible for Expungement?

Posted on September 22, 2021 in Expungement

The expungement of an arrest or conviction record means that the courts seal or erase a person’s criminal record, blocking it from view by employers, landlords and others. Unlike most states, however, Arizona does not currently allow for record expungement. However, in 2023 a new set of laws will allow for expungement and record sealing in the state. Instead, eligible parties can apply to have their convictions set aside. Find out if you are eligible for having your conviction set aside with assistance from an attorney.

What Is the Difference Between Expungement and Setting a Conviction Aside?

With record expungement, the courts seal or erase the record, making it as though it never existed. To most people and agencies, including employers, an expunged record is invisible. Only law enforcement agencies and the courts can access a record that has been expunged. A conviction, arrest or criminal charge that has been set aside, on the other hand, will still exist and be visible for parties that are authorized to view the record. However, it shows that the courts dismissed the conviction or vacated the judgment.

If a conviction is set aside under Arizona Revised Statute Section 13-905, there will be a note on the record stating that a judge or court has agreed to “set aside” the record. This shows anyone viewing the record that the individual committed a type of crime that qualified him or her for setting the record aside (usually, a nondangerous crime that did not harm anyone) and fulfilled the conditions of his or her sentence or probation.

There are similarities in the benefits that both of these legal processes can give to the subject of the criminal record. Like expungement, setting aside a conviction can come with housing, employment and other benefits for someone who has a prior criminal conviction on their record. After the passing of House Bill 2067 in Arizona, an individual who has had a record set aside may also receive a Certificate of Second Chance, which can allow them to obtain an occupational license for further employment opportunities.

Who Can Have a Conviction Set Aside in Arizona?

According to the law, most people who have been convicted of offenses in Arizona – both misdemeanors and felonies – will qualify to have their records set aside as long as they fulfill the probation or sentence related to the crime and enough time has passed. There is no waiting period for a misdemeanor crime, but setting aside a felony record comes with a mandatory waiting period of two to five years after the fulfillment of a sentence.

There are certain crimes and situations, however, which disqualify an individual in Arizona from being able to set aside a criminal record. These include:

  • A dangerous offense – a crime committed with a dangerous instrument or deadly weapon.
  • A crime for which the individual was required by the court to register as a sex offender.
  • A crime where there was a finding of sexual motivation.
  • A crime that inflicted serious bodily injuries on one or more victims.
  • A felony offense against a victim who was under the age of 15.
  • Certain driving offenses, such as excessive speeding, road rage, a hit-and-run, and driving on a suspended license.

It is up to a judge’s discretion whether or not to accept an application to have a record set aside in Arizona. When making this determination, a judge will look at many different factors, including the amount of time that has passed since the conviction, whether this was the individual’s first offense, the severity and nature of the crime committed, and any applicable eligibility rules.

Consult With a Criminal Defense Attorney

If you are eligible for Arizona’s version of record expungement, you or your attorney will need to fill out and submit the required application to the criminal courts. Your probation officer can also submit this paperwork. Working with an expungement attorney in Phoenix can make it easier for you to improve your prospects after being convicted of a crime. An attorney can help you understand and navigate the process of having a record set aside in Arizona.

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