Record Sealing Limitations
As of December 31, 2022, a person who is arrested, convicted or sentenced before, on or after December 31, 2022, may petition the court to have their criminal case record sealed. If the court grants the petition, the petitioner would be allowed to state on employment, housing, and financial aid or loan applications that they have never been arrested for, charged with or convicted of the crime that is the subject of the arrest or conviction. Arizona Revised Statutes 13-911 allows for sealing of arrest, conviction and sentencing records.
Still, those seeing record expungement need to know the limitations.
What exactly gets sealed?
A “Case Record” means all records related to your arrest, conviction, and sentence for a specific offense. This includes:
Court records (but not Arizona Supreme Court or Arizona Court of Appeals records)
Department of Public Safety, Central State Repository records
Prosecuting agency records
Law enforcement agency records
The court’s “case record” related to an incident includes only charges that were filed with the court. Therefore, if you are seeking to seal arrest records for an arrest that occurred without charges being referred by a prosecutor, you must specifically file a petition to seal those arrest records. Suppose separate incidents resulted in multiple arrests with no charges being filed or multiple arrests with numerous filings. In that case, you will need to file a separate petition for each arrest or filing unless the court consolidated the cases into a single case.
**The ability to seal case records does not extend to the Supreme Court or Court of Appeals case records.
Can you get your record sealed if you have multiple convictions?
Suppose you have been convicted of two or more offenses and have not been convicted of any other crime (except a misdemeanor offense in Title 28, excluding a DUI). In that case, you may be eligible to petition the court to seal your records:
after you complete the conditions of your probation or sentence;
you have been discharged by the court; and
the required period for each conviction has passed as outlined in ARS § 13-911(E). NOTE: If you have a prior historical felony conviction, you must wait an additional five years.
How long will it take after the Petition is filed to get a ruling?
It will take at least 30 calendar days after you file your petition before the court grants or deny your petition. This time is to: (1) allow DPS to conduct its research and prepare the required report and (2) notify and receive responses from the prosecutor and any victims who have exercised their rights. The court may rule on the petition before 30 days if it has all the required information and has received notice that the prosecutor and all the victims who requested post-conviction notice do not object to the petition.
What if you pick up a new charge after filing a petition?
If any new charges are filed against you after you file your petition but before the court rules on it, you must notify the court. The court cannot grant or deny your petition until the new charges are disposed of if the new charges could: (1) result in a conviction that cannot be sealed or (2) extend the time to file a petition under ARS § 13-911.
If the court is notified by any means of new charges, including but not limited to notification by you or the prosecutor, they are listed on the DPS report, or the charges are filed in the same court in which the petition is filed, the court must consider and determine how they impact your petition.
Rights Not Affected if Petition is Granted:
Sealing your records does not affect any of the following:
Your right to appeal the conviction or sentence or rely on it in the bar of any subsequent proceeding for the same offense.
The right of a law enforcement agency to maintain an arrest and conviction record and communicate information to prosecuting agencies, courts, probation departments, and other law enforcement agencies for purposes listed in ARS § 13-911(J). NOTE: Records from the Department of Public Safety, Central State Repository, are not public records and will not be altered by DPS but will be marked as sealed.
The Department of Public Safety or the Board of Fingerprinting from considering a sealed conviction when evaluating an application for a fingerprint clearance card. (ARS §§ 41-1758.03 or 41-1758.07)
Your right to possess a firearm if the conviction prohibits you from possessing a firearm under Arizona or other state and federal laws. (28 CFR § 25.9)
Denying an Arrest or Conviction
Suppose the court grants your petition to seal criminal case records under ARS § 13-911, with exception. In that case, you may be able to state on employment, housing, financial aid, or loan applications that you have never been arrested for, charged with, or convicted of the crime that is the subject of the arrest or conviction. Your ability to deny an arrest or conviction applies only on or after the date your petition is granted. However, keep in mind that there are exceptions. In some situations, you cannot deny an arrest or conviction even if your petition to seal criminal case records is granted.
Exceptions to Denying an Arrest or Conviction
If the court grants your petition, there are situations in which you cannot deny that the arrest or conviction occurred. Ensure that you follow and understand all exceptions.
Your sealed records involve an offense listed in Title 13, Chapter 34.
You submit an application that requires a fingerprint clearance card (ARS §§ Title 41, Chapter 12, Article 3.1, “Fingerprinting Division”).
You are applying for a job involving the operation of a motor vehicle, boat, or airplane if your sealed records involved operating a motor vehicle, motorized watercraft, or airplane while intoxicated or theft of means of transportation.
You are applying for a job that requires entering into and performing services inside a residential structure if your sealed records involved burglary or theft from a residential or nonresidential structure.
You are applying for a job supervising, educating, or administering care to a minor, and your sealed records involved child abuse or aggravated assault.
You are applying for a job involving supervising or administering care to a vulnerable adult or person 65 years of age or older, and your sealed records involved vulnerable adult abuse.
You are applying for a job involving accounting, overseeing, transporting, handling, or managing another person’s money or financial assets, and your sealed records involved theft, theft of means of transportation, forgery, identity theft, or fraud.
You are applying for a position with a law enforcement agency, prosecutor’s office, court, probation department, child welfare agency, Department of Child Safety, or correctional facility.
You are undergoing a background check to place with you a child who is in the Department of Child Safety’s custody.
Disclosure is required by state or federal law.
Disclosure is required to comply with program integrity provisions of Medicare, Medicaid, or other federal healthcare program.
Limitations on Sealed Records
Understand that even if your criminal case records are sealed under A.R.S. §13-911, your records will still be available if:
Alleged as an element of an offense.
Used as a historical prior felony conviction.
Admissible for impeaching any party or witness in a subsequent trial.
Used to enhance the sentence for a subsequent felony.
Used to enhance the sentence for DUI offenses.
Pleaded and proved in any subsequent prosecution by the State of Arizona or an Arizona political subdivision.
Used as a conviction if the conviction would be admissible if the conviction was not sealed.
The offense prohibits you from possessing a firearm under state or federal laws.
Who Can Access Sealed Case records?
The person whose records are sealed.
Any attorney who has filed a notice of appearance on behalf of the person whose records are sealed.
The victim in the case if the victim has exercised victims’ rights.
In addition, the following entities may obtain sealed records if the purpose relates to their official duties or internal hiring practices:
Law enforcement agency
Prosecuting agency (On the request of a person who is charged with a criminal offense or that person’s attorney of record, a prosecuting agency must provide the sealed case records of any person whom the prosecuting agency intends to call as a witness in that person’s prosecution.)
Probation department
Agency preparing a presentence report
Court
Department of Child Safety
Child Welfare Agency
Department of Juvenile Corrections
State Department of Corrections
Arizona correctional facilities
Clerk of the Court
Department responsible for maintaining court records.
An experienced attorney can help you through the application process to seal your records. It’s essential to get your legal documents filed correctly. AJB Law firm can help ensure everything gets done quickly and with little stress. Call today for a free consultation in Tucson and surrounding areas.
AJB Law firm Amanda Bynum represents individuals charged with crimes in Tucson, Arizona, and surrounding areas, including Pima County Justice Court, Pima County Superior Court, Tucson City Court, Sahuarita Municipal Court, Green Valley Justice Court, and Marana Court. In some cases, Attorney Amanda Bynum can travel to surrounding counties throughout Arizona. She has handled cases in Cochise County, Maricopa County, Coconino County, Yuma County, and Navajo County.
