In Arizona, defendants can apply to have records of their conviction set aside after they complete their sentence and all other post-conviction requirements. Under ARS 13-905, the conviction will still appear on their criminal record but will be marked as “set aside,” or completed. Most of the defendant’s civil rights will be restored. This is the closest that Arizona allows to expungement.
Applying to set aside a conviction is different from a motion to restore civil rights.
1. What is a conviction set aside in Arizona?
A conviction set aside is a form of post-conviction relief in Arizona. Arizona Revised Statute (ARS) 13-905 allows someone who has been convicted of a crime to make a record of the fact that they have completed their sentence.
Defendants who are eligible for a set aside can apply for one in court. If granted, the judge will sign an order that:
- sets aside the judgment of conviction,
- dismisses the criminal charge, information, complaint, or grand jury indictment, and
- releases the defendant from nearly all penalties stemming from the conviction.1
This means that a set aside will restore civil rights that were lost due to the conviction. If the conviction was for a felony, rather than a misdemeanor conviction, a set aside will restore the right to:
- hold public office,
- serve on a jury, and
- possess a firearm, unless the defendant was sentenced for a serious offense.2
A conviction set aside will not impact:
- a driver’s license suspension or revocation,
- a requirement that the defendant take driver safety classes,
- any disqualifications from carrying a commercial driver’s license (CDL),
- a requirement from the Department of Transportation that an ignition interlock device (IID) be installed in the defendant’s vehicle,
- any repercussions for illegal hunting, or
- a revocation, suspension, or denial of a hunting license.3
This limits the effect of a set aside on crimes involving driving under the influence (DUI).
When a conviction is set aside, it will not be redacted or removed from the person’s criminal record. Instead, the Arizona Department of Public Safety will update the entry to include an annotation that says the conviction was “set aside.”4 This means that convictions that have been set aside will still appear on the defendant’s criminal background. Both law enforcement and members of the public who conduct a background check will still see the conviction. Additionally, convictions that have been set aside can also be:
- used as a prior conviction to increase the sentence of subsequent criminal cases,
- alleged as an element of an offense,
- used to enforce a driver’s license suspension, revocation, or other DUI penalty, or
- considered when evaluating an application for a fingerprint clearance card.5
Criminal defendants are informed of their right to seek a set aside during their sentencing hearing.6
2. How do I file an application to set aside a conviction in Arizona?
People who are eligible can file an Application to Set Aside a Prior Conviction. This application has to be filed in the Arizona Superior Court in the county where the conviction occurred.
Under ARS 13-905, the Application can be filed by:
- the defendant,
- the defendant’s criminal defense attorney, or
- the probation officer.7
Courts are prohibited from charging a filing fee for this Application.8
After receiving the Application, the court may schedule a hearing. The victim of the criminal offense that led to the sentence has a right to be present and heard at this proceeding.9″>The person filing the Application does not.
If the Application to Set Aside is denied, the court must state the reasons for its denial.10
3. When can I apply for a set aside?
Under ARS 13-905, people in the state of Arizona are eligible to apply to set aside a prior conviction once they have:
- finished their prison sentence with the Department of Corrections,
- fulfilled all of the conditions of their probation, including payment of restitution, and
- been discharged by the court.11
4. What factors do courts consider when setting aside a conviction?
Arizona courts that receive an Application to Set Aside a Prior Conviction will consider the following factors in deciding whether to approve or deny the motion:
- the details of the offense that led to the conviction and sentence,
- the applicant’s compliance with the terms of probation or the rules of parole,
- whether the applicant has any prior or subsequent convictions,
- the wishes of the victim of the crime,
- the status of the applicant’s restitution payments to the victim,
- the amount of time since the applicant completed his or her sentence,
- the applicant’s age at the time of the conviction, and
- any other factor deemed relevant.12
5. How is this different from an expungement?
A conviction set aside is different from expungement in that expungement seals someone’s criminal record from certain members of the public.
Many other states have expungement laws that are designed to let people who have been convicted of a crime move on with their lives. By expunging their record after a period of good behavior, these states let people hide their conviction from the public. Background checks will not discover the criminal record, though law enforcement still has access to it.
Arizona law does not have expungement. The closest it has is a conviction set aside. Members of the public can still see the prior conviction. The listing, however, includes a note that the sentence has been completed.
6. How is this different from restoration of civil rights?
Setting aside a conviction under ARS 13-905 is different from a restoration of civil rights in that a restoration of rights:
- is automatic, for people who had not previously been convicted for a felony and who have completed victim restitution payments,13
- requires a 2-year waiting period after receiving a certificate of absolute discharge, for people who have been previously convicted of a felony,14
- will not restore the right to possess a firearm after a misdemeanor conviction for domestic violence under federal law,15″>and
- will not amend the person’s criminal record to include an annotation that the conviction was “set aside.”
7. Are any criminal convictions ineligible for a set aside?
The following criminal convictions are not eligible for a set aside:
- any crime that is considered a dangerous offense because it involved a deadly weapon or dangerous instrument,
- any offense that requires sex offender registration,
- any offense that included a finding of sexual motivation,
- any felony conviction in which the victim was under 15 years old,
- driving on a suspended license, or a license that was revoked or canceled, and
- any traffic violations, except for reckless driving.16
8. Can I still face discrimination for having a criminal record?
Yes, anyone who has successfully gotten a prior criminal conviction can still be treated differently because of their background. For example, they can face difficulties:
- finding a landlord that will rent them an apartment,
- getting a loan or mortgage from a bank, or
- getting hired at a job.
Anyone who has gotten a prior conviction set aside will still have to disclose it on application documents. If they do not, a background check will find the annotated entry.
- ARS 13-905(D).
- ARS 13-905(J).
- ARS 13-905(D).
- ARS 13-905(F).
- ARS 13-905(E) and (G)(2).
- ARS 13-905(A).
- ARS 13-905(B).
- ASR 13-905(I).
- ARS 13-905(H).
- ARS 13-905(A).
- ARS 13-905(C).
- ARS 13-907(A).
- ARS 13-908(A).
- 18 USC 921(a)(33)(B)(ii).
- ARS 13-905(K).