Getting Your Freedom Back

DuMond Disclosure Volume 3 | By: Chris Doran, Esq. | July 1, 2017

Getting Your Freedom Back - The Past

Can I Get My Previous Felony or Misdemeanor Expunged/Sealed/Removed in Arizona?

First, what is an ‘expungement’?
Expungement is the process by which a record of a previous criminal conviction is destroyed or sealed from the state or federal repository.  Essentially, it seals, and in some instances completely ERASES, a prior felony or misdemeanor from a person’s record.  This procedure can be extremely beneficial to prevent your past being used against you with future charges.  It can also be advantageous when applying for a job, renting an apartment, buying a home, obtaining a professional license, or removing negative stigma in general.

The bad news (there will be good news, I promise)….there are NO EXPUNGEMENTS in Arizona.  If you have been convicted of a misdemeanor or a felony in Arizona either by pleading guilty, pleading “no contest”, or by being proven guilty after a trial, that conviction is with you forever. Yes, even if your felony is from 50 years ago!

How will this affect my life?
Let’s start with a felony conviction.  If you have a felony conviction, you lose four primary civil rights at the moment of your sentencing:

  1. The right to vote;
  2. The right to hold public office;
  3. The right to serve on a jury;
  4. The right to possess a gun or firearm.[1]

Additionally, this felony conviction can be used against you in future criminal prosecutions if you were to ever get charged with another crime in the future.  Specifically, it can affect your plea offers, your sentencing, and how you are viewed in general.  It can also negatively affect your ability to find a job, find a house/apartment, and your education.

A misdemeanor conviction is less detrimental.  You do not lose any of the four civil rights listed above.[2]  A misdemeanor conviction will not have the same extreme effects on any future criminal charges, house searching, job hunting, or educational restrictions, but misdemeanor convictions can still affect all those categories.

So, if there are no expungements in Arizona, can anything be done to help me?
Yes…which leads to the good news!  In many scenarios, your civil rights can be restored and your conviction can be “set aside”.

Restoration of Civil Rights

  1. One prior felony conviction: If you have no more than one prior felony conviction, then your right to vote, your right to hold public office, and your right to serve on a jury are all AUTOMATICALLY restored after (1) your absolute discharge from imprisonment (if any)[3], (2) after you complete probation (if any), and (3) after you pay all fines and restitution imposed (if any). ***Your right to possess a firearm is NOT automatically restored like the rest of your civil rights!***[4] Instead, you must file a motion to have your gun rights restored and the sentencing judge (or his/her successor) has to grant that request.
    1. This cannot be done until two years after the completion of probation (all fines paid, all community service complete, all jail finished, etc.).
    2. If you were convicted of a “serious offense” as defined in A.R.S. § 13-706, then you may not file for the restoration of the right to possess or carry a gun or firearm for ten years after the completion of probation.
    3. If you were convicted of a dangerous offense defined in A.R.S. § 13-704[5], you may not file for the restoration of the right to possess or carry a gun or firearm EVER.[6]
  2. Two or more prior felony convictions: If you have two or more prior felony convictions, then your civil rights are not automatically restored and you will need to petition the court to have your civil rights restored. This cannot be done until you are discharged from prison or until you have completed probation. If you had to go to prison, you will need a certificate of absolute discharge from prison.[7]

Setting Aside a Conviction
Even though you cannot erase your criminal felony or misdemeanor with an expungement, in many cases you can get it “set aside”.  So, what does that mean, exactly?  It means the court will “set aside the judgment of guilt, dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction” with some exceptions.[8]

What are the exceptions?

  • You will not be released from penalties and disabilities imposed by the Department of Transportation, such as: license revocation, license suspension, ignition interlock installation, and traffic survival school requirements.
  • You will not be released from your prior felony or misdemeanor being used against you in future prosecutions if you were to be charged with a crime in the future. *This is the main difference between and expungement and a set aside…a set aside conviction can always be used against you in the future because it still exists.*[9]
  • You will also not be released from penalties or disabilities in relation to the game and fish commission: hunting and fishing license suspensions and revocations.[10]

What about employment? How does this change how I answer the infamous question, “Have you ever been convicted of a crime?”
This is probably the most asked question revolving around a set aside, so you would think it has a clear answer.  Unfortunately, it does not.  I have spoken with lawyers, judges, and experts in the area of set asides but there is not a clear, straight forward answer to this question.  So, if your conviction has been set aside and an employer asks you if you have ever been convicted of a crime, can you answer “no”? Yes, you can.  Should you answer “no”? That is a decision that you are going to have to make.

One option is that you can answer “no”, but if the employer runs a background check, it might still come up with a notation that it has been set aside.  How does an employer view the set aside notation?  Well, that depends on the employer.  They may think that means the case has been dismissed or expunged or erased, and not hold it against you.  Or, they may think you lied and decide to not hire you, or even fire you down the road for lying on your application.

The other option is to answer “yes, but it has since been set aside.”  This option prevents the possibility of an employer saying you lied, but it also draws attention to the fact that you have been convicted.  If you chose to disclose this information on your application, I would recommend submitting the set aside order from the court with your application and using the language of the statute to explain that a set aside “order[s] that the person be released from all penalties and disabilities resulting from the conviction”.  In my mind, employment penalties or disabilities are included when it says “all” and employers should respect that.  In reality, in a right to work state, will they?  Who knows.[11]

Can all convictions be set aside?
No.  Convictions that cannot be set aside include:

  1. Dangerous Offenses[12]: “Offenses involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person.”[13]
  2. Sex Offender Registration: Offenses in which the person is required or ordered to register as a sex offender.[14] For a full list, see R.S. §13-3821.
  3. Sexually Motivated Finding: Offenses in which there is a special allegation and finding of sexual motivation.[15]
  4. Underage Victim: Offenses in which the victim was a minor under the age of 15.[16]
  5. Traffic Offenses: Offenses related to stopping, standing, or operation of a motor vehicle.[17] All of these can be found in Title 28, Chapter 3.
    1. This does not include the crimes of Reckless Driving or Driving Under the Influence (DUI). Both of those convictions can still be set aside.
    2. This may come as a shock, but criminal speeding CANNOT be set aside.[18]

How do I get started with setting my conviction aside?
An application to set aside a conviction can be submitted and granted as soon as you have fulfilled the conditions of your probation or, if there was no probation, then as soon as you have been discharged from prison by the court.

For probation, this means: all fines and fees paid, all restitution paid, any and all classes or community service complete, and a satisfaction of the probation time period that was ordered.[19]

For prison, this means: When you are released from custody IF there is no community supervision (parole).  If there is community supervision (parole), then you may not apply to set aside your conviction until the community supervision time is completed as well.

If you meet the above criterion, contact us at DuMond Law to get started today!  If you have additional questions, or if you have not fulfilled all your probation obligations, that is okay; call us to set up a free consultation to discuss your case so we can try to assist (602-803-4975).  We have helped numerous people get their convictions set aside and their rights restored.

This 4th of July, take a step toward getting more of your freedom back and apply to get your conviction set aside and/or your civil rights restored!

This 4th of July - Fireworks and American Flag

[1] A.R.S. § 13-904(A)

[2] The one exception is that someone can lose their right to possess a firearm under federal law if they are convicted of a misdemeanor domestic violence offense.  18 U.S.C. § 922(g)(9)

[3] Absolute discharge from imprisonment includes parole or community supervision.  For example. If you get sentenced to five years in prison but get out after 85% of your sentence (4.25 years), then your rights will not be automatically restored until the 0.75 years on community supervision is complete as well.

[4] A.R.S. 13-912(B)

[5] If the offense was not designated “dangerous” at the time of sentencing, then it is not dangerous.

[6] A.R.S. § 13-905(C) & A.R.S. § 13-906(C)

[7] A.R.S. § 13-906(B)

[8] A.R.S. § 13-907(C)

[9] A.R.S. § 13-907(C)(1)

[10] A.R.S. § 13-907(C)(2)

[11] If you want to help people with past convictions receive a fair chance with employment opportunities, and if you want to assist in their fight to restore their civil rights, visit Ban The Box and sign with your support.

[12] A.R.S. § 13-907(E)(1)

[13] A.R.S. § 13-105(13)

[14] A.R.S. § 13-907(E)(2)

[15] A.R.S. § 13-907(E)(3)

[16] A.R.S. § 13-907(E)(4)

[17] A.R.S. § 13-907(E)(5)

[18] If you think this law sends a message that it is better to drink and drive or to recklessly drive your car than it is to drive excessively fast, you may consider writing your senators: Jeff Flake and John McCain

[19] If you have outstanding fines and fees, you may be able to get them reduced or waived, and still get your conviction set aside if everything else is completed.

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