Sealing records, Expungements, and Set-Asides in Arizona
Attorney Amanda Bynum explains record sealing, expungements, and Motions to Set Aside convictions in Arizona
Arizona’s laws regarding “sealing” your criminal records have changed. In fact, the new law is one of the broadest sealing laws in the country. There is no limit on the number of occasions sealing may be sought.
As of January 1, 2023, a person arrested, convicted, or sentenced before or after the law change may petition the court to seal their criminal case record. If the court grants the petition, the applicant 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.
What records can be sealed?
The only records that can be sealed are those under the control of criminal legal entities, including the courts, the Department of Public Safety, prosecutor’s offices, and law enforcement agencies. This means that sealing the records in criminal courts and agencies will not impact any other public record. For example, if information about your case or arrest was published online–sealing the record will not remove the information from the internet or any other agency or person with the information.
Sealing a criminal record includes all records related to your arrest for a specific offense, including Court Records (excluding appellate records), Department of Public Safety, Central State Repository records, and Prosecuting Agency records. Only the charges in a single filing for a single incident are included in a case record. This means a separate petition for each charge must be filed.
Who is eligible for a record seal?
All but Class 1 felonies and certain violent and sexual offenses are eligible for sealing. There are three scenarios under which you can file a petition to seal case records:
If you were convicted of an offense and have completed the requirements of your sentence, including payment of all monetary obligations and restitution to all victims.
If you were charged with an offense, but the charge was subsequently dismissed or resulted in a not guilty verdict at trial.
You were arrested, but the charges were never filed.
You are eligible to have your record sealed in any of the above scenarios, so long as you have not been convicted of any other criminal offense, AND: the following time period has passed since you completed the conditions of probation or sentence and was discharged by the court:
10 years for a class 2 or 3 felony;
5 years for a class 4, 5 or 6 felony;
3 years for a class 1 misdemeanor;
2 years for a class 2 or 3 misdemeanor.
In addition, if you have a prior historical felony conviction, you must wait five years in addition to the waiting period above. This means that a prior felony conviction (regardless of eligibility) does not disqualify an eligible offense from relief rather, it extends the applicable waiting period for an additional five years.
What if you have more than one conviction?
If you have more than one conviction, you may petition the court to seal your records:
After you complete the conditions of the probation or sentence,
You are discharged by the court,
The required time period for each conviction has passed.
How long does it take for the court to make a decision?
It will take longer than a month after the petition is filed before the court will grant or deny your petition. During this time, DPS will report to the court, and any victims in the case will be notified. The DPS report will include the petitioner’s entire record of federal and state arrests and prosecutions and any other information that the court requests or that the Department believes will assist the court in making its determination. Unless the prosecutor or victim requests a hearing, the court shall grant the petition and seal the case records if it determines that granting the petition is in the best interests of the petitioner and the public’s safety.
What happens when your record is sealed?
If the court grants your petition, you may immediately 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.
What are the limitations?
Remember that you may not deny an arrest or conviction in some situations even though your petition to seal records is granted. These limitations are if:
Your sealed records involved drug offenses;
You are submitting an application requiring a fingerprint clearance card;
You are applying for a job involving a motor vehicle, boat, or airplane operation. Your sealed records involved operating a motor vehicle, boat, or airplane while intoxicated and theft;
You are applying for a job requiring entering into and performing services inside a residential structure. Your sealed records involved burglary or theft;
You are applying for a job supervising, educating, or administering care to a minor. Your sealed records involving child abuse or aggravated assault;
You are applying for a job involving supervising or administering care to a vulnerable adult or person over 65. Your sealed records involved vulnerable adult abuse;
You are applying for a job involving accounting, overseeing, transporting, handling or managing another person’s finances. Your sealed records involved theft, forgery, identity theft or fraud;
You are applying for a position with law enforcement, prosecutor’s office, court, probation department, child welfare agency, Department of Child Safety, or correctional facilities;
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 health care program.
Even if your criminal case record is sealed, under certain conditions, it must be made 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 driving under the influence offenses.
Pleaded and proved in any subsequent prosecution of the person 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.
Used as a prohibited offense from possessing a firearm under other state and federal laws
After a record is sealed, some parties may obtain the sealed case records, including:
The person whose records are sealed;
The attorney who has filed a notice of appearance on behalf of the person whose records are sealed;
The victim in the case.
The following individuals may also access sealed records for purposes related 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
Sealing vs. Expunging a Marijuana Record:
Sealing a record is different than an expungement. If your record is expunged, you can say that you have never been arrested, charged, adjudicated, convicted, or sentenced for the marijuana-related criminal record; AND the case may not be used in a subsequent prosecution.
The following qualifying Marijuana possession arrests and convictions can be expunged from your record:
Possessing, consuming, or transporting 2.5 ounces or less or containing no more than 12..5 grams of marijuana concentrate;
Possessing, transporting, cultivating, or processing not more than six plants at an individual’s primary residence for personal use; and
Possessing, using, or transporting paraphernalia
Expunging these records is an easy process in many jurisdictions. The Pima County Attorney’s Office has a web form to make it easy to file independently. https://www.pcao.pima.gov/prop207/ If you don’t want to file on your own, AJB Law Firm assists clients in filing Petitions and ensuring action is taken. Low flat fees are available.
Setting Aside a Conviction:
Arizona law also authorizes courts to set aside or vacate most convictions and to dismiss the charges upon “fulfillment of the conditions of probation or sentence and discharge by the court.” Set-aside is not available to anyone convicted of a criminal offense involving the infliction of serious physical injury, the use of a deadly weapon or dangerous instrument, a victim less than 15 years old, a requirement that the person register or where there has been a finding of sexual motivation.
A Set Aside restores all rights and generally releases the person from all penalties and disabilities resulting from the conviction. This includes firearms rights. However, set-aside does not seal or expunge the conviction and does not relieve the person from having to report the conviction if asked. The Department of Public Safety will update the person’s criminal history with an annotation that the conviction has been set aside. For individuals who are not yet eligible for a record seal, AJB Law firm’s criminal defense attorneys can help with filing a Set Aside.
Or, if you want to file the Petition on your own, forms are usually available at the Court. No fee is required by the court to file a Motion to Set Aside, and the motion can be filed in any court, not just the Sentencing Court.
When a Motion to Set Aside is filed, courts must consider the following factors:
The nature and circumstances of the offense;
The applicant’s compliance with conditions of probation;
The sentence imposed and any correctional rules or regulations;
Any prior or subsequent convictions;
The victim’s input and the status of victim restitution, if any;
The time elapsed since the completion of the sentence;
The applicant’s age at the time of the conviction; and
Any other relevant factor.
Certificate of Second Chance
Effective in 2021, a Certificate of Second Chance:
Releases the person from all barriers and disabilities in obtaining an occupational license issued under Title 32 that resulted from the conviction if the person is otherwise qualified;
Provides an employer of the person protections of limited liability;
Provides a person or entity that provides housing to the person with the protections limiting the introduction of evidence that is provided to an employer; and
Is not a recommendation or sponsorship for or a promotion of the person who possesses the certificate of a second chance when applying for an occupational license, employment, or housing.
Courts can issue a Certificate of Second Chance to a person whose convictions have been set aside under specific circumstances:
the person was convicted of a misdemeanor;
the person was convicted of a class 4, 5, or 6 felony and at least two years have passed since the person fulfilled the conditions of probation or sentence; or
the person was convicted of a class 2 or 3 felony and at least five years have passed since the person fulfilled the conditions of probation or sentence.
If the court does not issue a certificate when the person’s conviction is set aside, the person may apply for a certificate after satisfying the time periods described above.
An experienced attorney can help you through the application process to have your conviction set aside, records sealed, or your Marijuana conviction expunged. In some cases, if your petition is denied, the only recourse is to appeal the ruling or sit out a waiting period before filing again. Appeals are only permitted based on an error in determining eligibility. 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.
