Expungement in Arizona: Conviction Set Aside (ARS 13-905)
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Criminal Record Set Aside Arizona
If you have a criminal record, relief is in sight. Something similar to expungement may be available for your felony or misdemeanor convictions if they are set aside by law ARS 13-905. While Arizona does not offer true expungement like other states, setting aside your conviction can help you move past the negative effects of having a criminal record. Erasing such a mark on your life provides many benefits, including increasing employment opportunities and restoring gun rights automatically. To learn more about expungement in Arizona, contact a Phoenix criminal defense attorney as soon as possible.
At Ybarra Maldonado Law Group in Phoenix, AZ, we’ll help you navigate the complexities of both state and federal laws. Criminal charges and even accusations are very serious in Arizona. That’s why you need an experienced Phoenix criminal defense attorney at your side. The worst thing you can do for your case is wait too long. Let us fight for both your rights and your future. To schedule a consultation about your case, please call our Phoenix office at 602-910-4040 today. You can also fill out our online intake form. We also help with Arizona Prop 207 expungements.
What Is ARS 13-905?
According to Arizona law ARS 13-905, a criminal defendant can apply to have their criminal record expunged after they meet certain requirements. These set aside laws differ from expungement laws in other states. When people have their criminal records set aside in Arizona, those records still technically appear on their records.
While they still show on the records, they will have a “set aside” mark next to them. This indicates that a defendant has completed all of their post-conviction requirements and received a set aside from the court. A set aside opens up many opportunities for those convicted of crimes, including the restoration of their civil rights.
What Does It Mean to Set Aside a Criminal Record?
When a court sets aside a criminal offense, it effectively dismisses the criminal conviction, dismisses the penalties, and removes limitations for the convicted. A person convicted of a crime can only do this if they complete their requirements for the post-conviction period. This can include jail time, fines, victim restitution, and community service.
To set aside a criminal conviction means to show potential employers and others that the convicted person has done the work to give themselves a second chance. In essence, the set aside will undo the conviction and dismiss it.
Conviction Set Asides vs Expungement in Arizona
In Arizona, expungements are not available for any convictions other than those related to marijuana. Prop 207 outlines that certain individuals may qualify for having marijuana-related criminal records expunged. Other crimes do not qualify for expungements in Arizona.
An expungement means to erase a criminal conviction from someone’s record completely. A set aside undoes the conviction, but it still remains on the criminal record. Convictions that are set aside are labeled as such on criminal records.
What Is the Benefit of Setting Aside Criminal Records?
Once someone has completed all of their post-conviction requirements, he or she can apply to have his or her criminal record set aside. This is true unless the individual has a serious offense on their record.
Obtaining a set aside has many benefits for those convicted of crimes. Any penalties or restrictions that came when the conviction occurred would be removed. Additionally, a set aside will appear on someone’s criminal record, which would be visible to potential employers and others.
Can Misdemeanors Be Removed From Your Record in Arizona?
Unfortunately, Arizona does not offer expungements like many other states. However, it is possible to set aside your conviction. Both felony and misdemeanor convictions are eligible for the set aside. While this does not remove the charge or conviction from your record, it does give others some important information. For example, if a potential employer runs a background check before hiring you, they will still see the charge or conviction on your record. However, they also see the set aside order.
This order tells the potential employer that you met all the conditions and requirements for your sentence or probation. The court vacated the conviction, and dismissed your charges. Certain convictions, however, do not allow for set aside orders.
Below, we list the situations in which a set aside is not available:
- Any dangerous offense
- Any violent or aggravated felony
- Crimes which require you to register as a sex offender
- Offenses involving sexual motivation
- Crimes in which the victim/s are under 15 years old
- Certain driving offenses
- Offenses involving serious physical injury
- Driving offenses while possessing a canceled or suspended license
How to Get a Misdemeanor Expunged in Arizona
To petition your court for a set aside, you must meet and complete all the terms and conditions of your sentence. This includes jail time, parole, probation, and fines. From felonies to misdemeanors, you can petition to set aside these offenses. However, with a conviction of two or more felonies or a prison sentence, you must wait two years before petitioning for the set aside.
In order to jumpstart the set aside process, we recommend two things. First, get an attorney. The process can be complicated, and having an experienced criminal lawyer on your side helps immensely. Second, visit the Arizona courts help website. This useful tool includes a form finder, court finder, and even self-help resources.
Does a Misdemeanor Stay on Your Record in Arizona?
Technically, yes. Set aside orders have notable limitations, and we always recommend understanding what they cannot do.
Below, we list out the limitations of set aside orders:
Set aside orders do not erase the conviction from your criminal record. If someone performs a background check on you, they still see the convictions. However, it also indicates that the court dismissed your charges. It stresses that the court vacated judgment and dismissed the charges.
In cases of employment background checks, the potential employer still sees arrests. While some do ask about arrests, most employers are more concerned with convictions.
Additionally, the state also has the authority to use set aside convictions for future prosecutions against you. Also, a set aside order does not affect or lessen the Department of Transportation’s penalties. For example, if the DOT imposed a license revocation as your penalty, a set aside order does not change this.
Lastly, set aside orders do not automatically restore civil rights. The right to vote or own a handgun as a convicted felon is a separate petitioning process.
How Long Does a Misdemeanor Stay on Your Record in Arizona?
As a result of Arizona’s strict sentencing laws, most misdemeanor and felony convictions will remain on your record until you turn 99. The state does allow for the courts to set aside qualifying offenses, but this only means that they are not in effect – it doesn’t remove them from your criminal record. Anyone who runs a full background check would still see these past crimes documented as having been committed with an annotation next to each conviction stating when it was “set aside.”
How Long Does a Felony Stay on Your Record in Arizona?
Arizona is one state that has very strict sentencing laws. Because of this, most misdemeanor and felony conviction records will remain on a person’s criminal record until they turn 99 years old. In other words, except for those crimes included in Prop 207 expungements, no criminal records are eligible for expungement or removal.
Some felony criminal convictions are eligible for a set aside, but not all. Any ineligible felony conviction suspends certain rights of a convicted person that cannot be restored through a set aside.
What If I Have Prior or Subsequent Convictions?
A person convicted of an eligible crime can apply to have their criminal record set aside. However, set asides are not guaranteed. A judge takes many factors into account when deciding whether to grant a set aside. This is also true for anyone who wants to apply for a set aside for a subsequent prosecution or conviction. Judges will take your entire criminal history into account when deciding whether to grant or deny the set aside order.
What Does the Court Consider When Determining Whether to Grant a Set Aside Order?
When judges decide whether to grant set aside orders for criminal convictions, they take many factors into account. Some of these factors include the following.
- All previous criminal convictions
- Individual’s age when they were convicted
- Circumstances and nature of the crime
- Individual’s compliance with their sentence and probation conditions
- Input from victims of the offense
- How much time has passed since the completion of the sentence
The above list is not exhaustive, as a judge will also consider many other factors before a court grants or denies a set aside order.
What Happens If the Court Denies My Application to Set Aside a Conviction?
Have you been denied your request to set aside a conviction? If so, it’s important that you know how to file for reconsideration. The process varies depending on the reason why the Court originally denied your request. There are instructions available online from the appropriate Arizona courts to help you.
Visit the website of the Arizona Judicial Branch to find the necessary forms and applications for all criminal forms. The post-conviction set-aside form is absolutely essential, though you may find other helpful resources as well. Another option for those who have been recently convicted is called post-conviction relief.
If My Conviction Is Set Aside, Will It Still Show Up on a Background Check?
Yes. If you’re convicted of a crime that is set aside by the judge, this doesn’t remove it from your criminal record. Should someone run a full background check on you, they will still see any convictions that have been set aside. They show up with an attachment noting the set aside order. So, when filling out job applications, it is a good rule of thumb to list all past crimes, regardless of whether or not you received a set aside order.
Also, some employers still frown on a criminal record, but it is easier to get a job with the “set aside” status. In order for your application to be considered by many businesses, they will want proof that your conviction has been set aside. This means turning in all of the necessary paperwork and filling out another background check form.
Let’s say that you were arrested for something in the past, and you’re worried about how that arrest will affect your future. You never received a conviction and the charges were dropped, but the arrest still shows up. Luckily, it is possible to request that your public record state that you were cleared of your charges. Below, we explain how ARS 13-4051 helps those who have an arrest on their record.
Those who received wrongful charges, indictments, or arrests have the right to petition the superior courts of Arizona to show on all public records that they are cleared.
The court holds a hearing on the petition. If the judge feels that the individual is innocent, they issue an order to clear the record. Then, a copy of the order is sent to all law enforcement agencies and courts. The court order states that no law enforcement agency or court may release copies of or access to the records to anyone other than those approved by the court.
Those who receive this court order and fail to comply with it risk liability for damages to the person involved.
Do I Need an Attorney to Get a Criminal Record Set Aside?
While those convicted of crimes are not required to hire an attorney to apply for set asides for criminal offenses, it is always a good idea. An experienced criminal defense attorney can evaluate your situation and advise you of the best course of action.
The set aside application process is often complex and difficult to navigate without skilled legal representation. Because of this, it is important to work closely with a criminal attorney. They can help you fill out the application and navigate the process as smoothly as possible, reducing the likelihood of the court denying your application.
Phoenix, Arizona Expungement Lawyer
At Ybarra Maldonado Law Group, we commit ourselves each and every day to protecting the communities of Arizona. We fight on behalf of our clients with aggressive, compassionate representation. Those facing criminal charges, arrests, and convictions deserve to have their voices heard. We can even attempt to negotiate a suspended sentence on your behalf.
Our knowledgeable attorneys have years of combined experience litigating on behalf of our clients. As a client-centered firm with exceptional legal service, we’re here to help with your Arizona expungement (set aside order), DUI charges in Arizona, and even drug possession cases. To schedule a consultation with qualified representation, please call our Phoenix office at 602-910-4040 today.