Expungement in the Arizona Law System
- May 19, 2014
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Despite being a fairly ubiquitous term, there is no legally defined “expungement” in Arizona. Luckily for citizens, the concept exists under different names. It will be called having a Conviction Set Aside in addition to receiving a Restoration of Civil Rights.
Since felony cases remove someone’s right to vote, a Restoration of Civil Rights can be filed for those convicted of a felony so that they may be allowed to vote in the future. This can also include other rights being given back. Someone may file to have their civil rights restored in order to be able to hold public office, serve on a jury, or regain their right to bear arms. These tend to apply to felony cases, as those convicted of misdemeanors most often retain these civil rights. Those with multiple felonies will have to apply to have their rights restored, while those with one felony will generally get these rights back automatically after serving their time.
Restoration of civil rights is technically a separate order from a request to have gun rights restored. They can be submitted and reviewed at the same time, but occasionally a court will decide to just restore civil rights but not gun rights because of the nature of the crime committed by the individual submitting to the court.
Because Arizona does not have an expungement law, the charge will not be removed from someone’s criminal record. It is also important to note that in some cases, the defendant will be able to apply to have their civil rights restored but not get their conviction set aside. However, setting aside a conviction means that anyone who checks a criminal record will only see the “set aside order.” This means that an employer may know that you have a criminal record, but will not be able to know what it was, only that you met your probations terms, served whatever time you were sentenced to, and have now had the charges ultimately dismissed.
In Arizona, those who have had a conviction set aside still must answer yes on job applications when asked “have you ever been arrested?” or “have you ever been convicted of a felony?” They can, however, explain the situation to their employer and explain that the judge set aside the conviction. Generally speaking this should be enough to avoid causing any harm in the application process. Many employers and some government agencies avoid asking this on a written application and will instead ask this question at an in-person interview, giving the applicant a chance to explain their experience with the charges they faced.
Background checks will only show that the court vacated a conviction without giving details of the case, and if an employer asks for the details the former convict does not have to provide them. The record of that arrest is not completely gone, however, as certain government agencies and law enforcement will be able to access the full criminal record.
Being able to have a conviction set aside and have civil rights restored is dependent on a variety of factors. These include the jurisdiction in which a crime is committed, the type of charge, how long it has been since the conviction, and the person’s previous record. Some states have no form of expungement at all. In many cases, someone is not able to have their conviction set aside because they committed a more severe form of crime. These include, according to Arizona Criminal Code § 13-907: those involving serious physical injury, use or exhibition of a deadly weapon or dangerous instrument, any crime that requires the convict to register as a sex offender, any crime with a sexual motivation, crimes with a victim under 15 years of age, and some pertaining to driving. Furthermore those convicted of crimes such as aggravated assault and sexual misconduct may not have their civil rights restored either.
Those who have been wrongfully charged with a crime and subsequently cleared of the charges can also have their criminal records mention that they were cleared. For example, if arrested as a suspect in a crime you did not commit, your record will still indicate that you were arrested, but the superior court can make a note that in the end you were cleared of all charges.
It is important to keep in mind that Arizona courts cannot set aside convictions and restore civil rights in cases that happened in a federal court.
In order to have their rights restored, an individual will submit a request with the Superior Court in the county where they were convicted. Once the request is submitted, a judge will either grant the request, deny it, or set up a hearing which will require the help of an attorney. Should they deny the application, it is possible for the individual to file to have the court reconsider. The courts themselves have information regarding the specifics of the applications and where to contact them specifically.
If you’re looking to have a conviction set aside or get your civil rights restored, you will want to speak with an attorney before filing it as well as checking on the specifics of the county in which you were convicted. Timing, considerations of whether someone is eligible, and having the right information to submit are all key to having the court accept your application to have a case set aside. Because of this it is important to speak to an experienced criminal defense attorney that has experience with expungement cases.