Arizonans who have criminal records may have to contend with many obstacles when they are looking for jobs or housing. While many states offer the ability to expunge criminal records, Arizona does not have an expungement statute. Instead, it has a different process that people might undergo to attain post-conviction relief from their prior convictions. This process is known as Restoration of Civil Rights and also to have Criminal Convictions Set Aside.
People who have felony convictions on their records are also unable to serve on juries or to own or possess firearms unless their civil rights have been set aside.
This article discusses the following topics below:
- Why consider filing a petition to set aside
- What does expungement and set aside mean?
- The process
- After the courts set aside a conviction
- Who does not qualify
- How long does the process take?
- Background checks
- How Attorneys can help
Why Consider Filing a Petitions to Set Aside a Conviction?
If you have a felony conviction on your record, it makes sense for you to file a petition to set it aside. People who have felony convictions may be unable to own weapons or to serve on juries. They may also fail to pass background checks for employment and for apartments. Some types of convictions may also make them ineligible for certain types of financial aid for higher education.
Setting your record aside may restore your civil rights. While you will have to disclose that you had a conviction, employers will not pay as much attention to it when a court has granted your petition and has set it aside. This might make it easier for you to secure employment and housing so that you can move forward with your life.
If you have a prior misdemeanor conviction, it may not make as much sense to ask for the court to set your misdemeanor aside. Most misdemeanor convictions will not cause you to lose your civil rights. Your attorney at DM Cantor can help you to decide whether it makes sense for you to file a petition to set your misdemeanor or felony conviction aside.
In a recent survey, ” SHRM found that while there is a willingness to hire people with criminal records, only 5 percent of managers and 3 percent of HR professionals said their company actively recruits people with criminal records.”
What does Expungement and Set Aside Mean?
Expungement is a process through which certain qualifying criminal records may be removed from a person’s record so that they will not show up during background checks for employment or on credit reports. An expunged record is removed from the records of various agencies so that it will not show when employers and others conduct background checks. However, this process is not available in Arizona. Instead, the state has a process called a criminal record set aside. While this process does not “erase your record,” it will change it to show that the “conviction was set aside”.
The attorneys at DM Cantor can review your record and determine whether you might qualify for this process. Based on the qualifications, the application to set aside with the courts will be started.
What is the Process to Set Aside a Conviction in Arizona?
After a conviction for a felony has happened, there are different options after a conviction. Under A.R.S. § 13-907, most people in Arizona who are convicted of crimes are allowed to file motions to ask the court to set their convictions aside. In order to file a motion for this to happen, a convicted person must first complete his or her probation or sentence. After the sentence has been discharged, the person can then file a motion to request that the court set his or her conviction aside.
The request will not automatically be granted. Instead, the convicted person must file a motion with the court in which he or she was sentenced. The court will then review the request and consider a number of factors to determine whether or not to grant the request. The factors that the court will consider include the following:
- The type of conviction and the circumstances that were involved with it
- Whether you complied with the terms of your sentence or with probation
- If you have any prior convictions or any convictions that happened after the conviction that you want the court to act upon
- Whether you have fully paid the victim any restitution that was ordered
- What the victim wants to happen
- How long ago you completed your sentence
- How old you were when you were convicted
- Any other factors that the court believes are relevant
If the court denies your petition, you can file a motion for the court to reconsider its decision.
What Happens After the Court Sets Your Conviction Aside?
When the court grants your petition and sets your record of conviction aside, the information on your record will be changed. It will no longer show just a “conviction”. Instead, it will show that the court “set the conviction aside”. Your civil rights will also be restored. This means that you will be able to serve on a jury and, in certain situations, possess a firearm. Many people choose to explain on their applications that the court has set their convictions aside since the employers will be able to see the information if they conduct criminal background checks.
Having the ability to say that a prior conviction was “set aside” can help you to overcome the obstacles that you face when you are looking for a new job or are applying for an apartment. It might also help you if you are applying for educational loans to attend college.
After the court sets your conviction aside, it can still be used to count as a prior conviction if you have a future case against you. The Department of Public Safety can also consider the conviction when it conducts fingerprint checks, and law enforcement agencies will not be required to remove the information from their own internal records. The Department of Public Safety will add a note to your record but will not remove the information about the conviction.
Who Does Not Qualify for Set Aside?
Typically, some people are not eligible to have their criminal convictions set aside. The following types of convictions will not be eligible:
- Resulted in serious injuries
- Involved your use of a deadly weapon
- Require that you register as a sex offender
- Involving victims who were under the age of 15
- The court found to have a sexual motivation
The courts may be less likely to set an eligible conviction aside if certain circumstances exist. For example, if you failed to comply with the terms of any probationary sentence that you were granted, the court may not grant your petition. The court may also deny your petition if you are facing new charges or have received additional convictions after the one that you are wanting the court to act upon.
The court may also be less likely to grant your petition if the completion of your sentence happened very recently. Your attorney can review your conviction and the other factors and advise you about whether your petition is likely to be granted or denied.
While certain convictions may not be set aside or expunged, there are other options available that can help. Speak with one of our criminal defense attorneys today to explore your options.
How Long does the Process Take?
When you are petitioning the court to set your conviction aside, you should expect the process to take some time. Your lawyer will need time to prepare the petition for you and to file it with the court. The court will then need time to review the petition and all of the relevant factors in order to make its decision. The processing time can vary and will depend on the court’s schedule.
Some jurisdictions are busier than others and will take a longer period of time to make decisions about petitions that have been filed with them. You should expect the process from the time that you file your petition to the decision to take several months. Your attorney can explain to you what the average processing time currently is in the jurisdiction in which you were convicted.
Background Checks After a Conviction Set Aside
In a precedential case, the Court of Appeals of Arizona clarified the effect of setting aside a conviction. In Russell v. Royals Maccabees Life Insurance Company, 974 P.2d 443 (1998), the court held that setting aside a record does not allow a person to state that he or she has never been convicted unless he or she also states that the court set the felony conviction aside. This case clarifies the effect of setting a conviction aside. The information is not erased, and your employers will be able to see it. However, they will also see that the court set the conviction aside.
In the Russell case, a man pleaded guilty to felony theft and was sentenced to four years of probation. His probation officer filed a motion to request the court to terminate his probation early, which the court granted. The court then subsequently granted the man’s petition for the court to set his conviction aside. Later, the man was injured in an accident in 1994 and filed a claim under his disability insurance policy. The insurance company denied his claim because he had stated on his insurance application that he did not have any prior felony convictions. The man filed a lawsuit against the insurance company, and the company filed a motion for summary judgment.
The case was appealed to the Court of Appeals, which ruled against Russell and in favor of the insurance company. It found that people still have a duty to disclose a prior felony conviction, but that they are able to state that the court set it aside.
Why Hiring an Attorney is Recommended
You are not required to hire a lawyer to file a petition to set your record aside. However, hiring an experienced attorney to draft and file the petition might increase your chances of succeeding. A lawyer can help to prevent you from making mistakes on your petition, and he or she may explain the types of evidence that you might want to submit with your petition to increase the likelihood of the court approving your request.
If you have filed a petition on your own that has been denied, a lawyer can also help you by filing a motion to reconsider that provides some supplementary information about why the court should approve your request instead of upholding its denial.
The attorneys at DM Cantor have successfully defended many people against criminal charges and have helped many others to have the courts to set their convictions aside.
Here are a few Case Victories where our attorneys were able to have the courts successfully set aside criminal convictions. Visit our Set Aside / Expungements Victories Page to view many other victories.
– State v Mr. D. – Felony Aggravated Assault on a Police Officer
– State v Mr. R. – (3 Counts) Felony Possession of Drug Paraphernalia
– Stave v Mr. E. – Felony Aggravated DUI
– Stave v Mrs. M. – Felony Vehicular Endangerment