In certain states, such as California, there are ways to “expunge” a criminal record. For those whose records are expunged, in these states, the violation isn’t just removed from the record. Instead, law authorities completely seal or even destroy all records relating to the crime. The result is that someone with an expunged record can say they have never been arrested. And that changes their lives. It impacts their ability to get a job, rent an apartment, and more.
By contrast, Arizona has refused to expunge criminal records. There have been procedures that could reduce the impact of a criminal record. (And victims of sex trafficking may have their convictions vacated.) But beyond that, expungement didn’t exist in the state.
Until July 2021, that is. That’s when, for the first time, Arizona law began to provide for expungement.
Expungement of Marijuana-Related Conviction
The first state law to enable expungement came in a provision of the July 2021 law that legalized adult use of marijuana. That law provides that individuals who had been previously convicted of minor crimes relating to their personal use of marijuana can apply to have their conviction expunged.
Under the new law, someone with a conviction (or a pending case when the law passed) can petition the court to have their record expunged. The prosecuting agency then has 30 days to object to their petition.
If they object, or if the court decides there are genuine issues of fact, there will be a hearing to review the case. However, the default position is that expungement should be granted unless the prosecutor can provide clear and convincing evidence otherwise.
Once the judge grants the expungement, the conviction is vacated. Law enforcement must expunge the files and cannot use the arrest or conviction against the petitioner for any reason. The vacated judgment also entitles the petitioner to get back all their lost rights due to the conviction (i.e., right to vote, right to own a firearm).
Sealing of Other Convictions
The second part of the expungement laws is not yet effective until January 2023, but it’s still worth starting to work on the petitions. The forthcoming law will allow records to be sealed, and it relates to a much broader field of crimes. But the process is lengthy, and a positive result is less guaranteed.
First, the process is available for those who fall into one of three categories:
- Those who were arrested but were never charged for a crime
- Those who were arrested and charged, however, the prosecutor dismissed the charges, or they were found “not guilty” in a trial
- Those who were convicted of a crime but they’ve completed their sentence and made restitution to all of the victims, and a specified amount of time has passed since the court discharged the person
If someone with a conviction wants to get their case expunged, they must file a petition in the relevant court. The prosecutor and all victims then have 30 days to file an objection to the petition. The court can decide to grant (or deny) the petition based on the filings alone, but the judge can also order a hearing to address the case.
To be eligible for the sealing, they must not have committed any other crimes (except a minor misdemeanor) for a period of time after having completed their required punishment. The time depends on the class of their felony or misdemeanor (e.g., two years after a class 2 misdemeanor and ten years after a class 3 felony).
Those with more than one conviction will face additional hurdles.
However, if the petition is granted, information relating to the crime can still be used by law enforcement in subsequent cases, from impeaching them during trial testimony to including them as factors for increased sentencing.
If the conviction or arrest can still be used against you, you might wonder why you should bother to petition for the sealing. While law enforcement could use the information relating to subsequent criminal activity, most others outside law enforcement could not.
For job applications, rent applications, and other requests that ask if you’ve ever been arrested or convicted for a crime, most of the time, you could answer that you have never been arrested or convicted.
And the exceptions are limited. Primarily, the information could be revealed if the petitioner applies for a job relating to law enforcement or a position that directly relates to their crime. (For example, if the petitioner applies for a job as a mall security cop and they have a conviction for shoplifting.)
Arizona law had previously granted “set-asides” to those who have been convicted of certain crimes and have fulfilled their sentences. Some have described set-asides as an expungement, but that’s inaccurate. Granting a set aside does help those with a conviction get back some of their rights. But the petitioner’s record is not automatically sealed, and a set-aside does not remove cases entirely from background checks. Instead, the record would simply say that the case was dismissed.
Set-asides can be helpful—and if someone is ineligible for their record to be sealed, it’s worth considering. But they are less beneficial than the other statutes’ benefits.
While it’s exciting that these new laws help defendants move on with their lives, it’s equally important to realize that implementation of new laws can take a while to work out. That’s why you’ll need experienced criminal lawyers to help you every step of the way.
Similarly, since judges will now be granting petitions for expungements off of the petitioner’s filings alone, it’s vital that you bring the best possible arguments and documentation before the court. Again, the best way to do that is to have an experienced criminal lawyer prepare your materials.
All-in-all, the result of these new laws should be clear: If you have a criminal conviction and need a fresh start, don’t wait. Contact our office (by phone at: 602-548-3400) for a confidential consultation with one of our attorneys. Your future starts now, so call today.
Colin Bell is a DUI and Criminal Defense attorney in Phoenix, Arizona. He is Of-Counsel with Stewart Law Group with offices throughout Arizona. The firm has helped many clients navigate the legal complexities of DUI and criminal defense.
