Why the new Arizona Expungement Law A.R.S. 13-911 Matters to Individuals in Arizona Seeking a Fresh Start?

Tens of thousand’s or Arizonan’s have sought to have their past criminal record(s) expunged. Having a record expunged in Arizona usually meant seeking a “Set-Aside” by the court in which they were convicted. Set-Aside’s have been Arizona’s traditional form of expungement, but now Arizona allows to take expungement one step further by allowing one’s record to be sealed so that potential employers, landlords, school administrators and other’s cannot see a past conviction, plea or even charge. Getting your record “sealed” can truly help you put your past DUI charge in the past and help you advance your life forward.  Having a DUI Misdemeanor or Felony conviction can follow you around forever, until now…

What is A.R.S. 13-911 (The Record Seal Law)?

A.R.S. 13-911 allows individuals to petition the court to have their arrest and sentencing records sealed under certain circumstances. Here are the key details of the statute:

Who is Eligible to have Their Records Sealed?

A person may apply to the court to have their arrest and sentencing records sealed if they have been charged with a criminal offense and either the charges were dismissed, they were acquitted of the charges, or the charges were reduced to a lesser offense that is eligible for sealing. The person may also apply to have their records sealed if they were convicted of a misdemeanor offense and have completed the sentence, including any probation or parole, and have not been convicted of any other offense except for a misdemeanor violation included in title 28, but excluding a conviction for a violation of sections 28-1381 or 28-1382, 28-1383 regarding DUI, extreme DUI, and aggravated driving while under the influence. A person may petition the court for the sealing of records if the following time has passed since they completed the conditions of probation or the sentence was discharged by the court:

• Ten years for a class 2 or 3 felony
• Five years for a class 4, 5, or 6 felony,
• Three years for a class 1 misdemeanor, or two years for a class 2 or 3 misdemeanor.

If the person has a historical felony conviction, that person may file a petition for that offense as well, after an additional five years. When a person is convicted of multiple offenses, a person may not petition the court until the period prescribed has passed for each of the convictions. Additionally, a person may apply to have their records sealed if they were convicted of a felony offense that is eligible for sealing, they have completed their sentence, including any probation or parole, and have not been convicted of any other offense for seven years since the completion of their sentence. Not all offenses are eligible for sealing. Some offenses, such as violent or aggravated felonies, sex trafficking, the use or threat with a deadly weapon or instrument, knowingly infliction of bodily harm to another, and offenses involving children, are not eligible for sealing, or if the court has deemed the petitioner a dangerous offender as defined in 13-704.

If the court grants the petition, the records will be sealed and treated as confidential. The person may then deny the existence of the records, except in certain circumstances such as when applying for a job with a law enforcement agency or a job that requires a fingerprint clearance card. When the petitioner’s records are sealed, they may state that they have never been arrested for, charged with, or convicted of a crime when responding to questions about employment, housing, financial aid, or loan applications. If the person is granted a petition to seal their records, they may then apply to have their fingerprints and photographs destroyed by the arresting agency and the Arizona Department of Public Safety.

The exceptions to this are:

1. If the person is submitting an application that requires fingerprint clearance 2. The sealed case records involved a violation of chapter 34 (relating to drug offenses) 3. The sealed records involved burglary or theft from residential and no residential structures and the person is applying for a job that requires them to enter and perform services inside of a residential structure 4. The sealed records involved child abuse or aggravated assault and the petitioner is applying for a job involving supervising, educating, or administering care to a minor. 5. The records sealed involve the abuse of a vulnerable adult, and the person is applying for a job involving supervising or administering care to a vulnerable adult or person at least 65 years old. 6. The sealed records contain a violation of DUI, extreme DUI, second offense DUI, or theft of transportation charges and the person is applying for a job involving the operation of a motor vehicle, boat, or aircraft either commercially or privately. These can be found in sections: 5-395.01, 5-396, 5-397, 13-1814, 28-1381, 28-1382, 28-1383, 28-8282, 28-8284, 28-8286, 28-8287, 28-8288. 7. The sealed records include theft of means of transportation, forgery, or taking the identity of another by way of fraud, schemes, or artifices and they are applying for a job involving accounting, overseeing, transporting, handling of, or managing another person’s financial assets. 8. The petitioner is applying for a job with a law enforcement agency, a prosecutor’s office, a court, a probation department, a child welfare agency (defined in section 8-501), department of child safety, department of juvenile corrections or the state department of corrections. 9. The person is undergoing a background check with the department of child safety, for the placement of a child in the department’s custody, with the petitioner. 10. State or federal law requires disclosure. 11. The disclosure is required with Medicare, Medicaid, or other federal health care programs with integrity provisions. 12. The person’s employer is not required to or liable for hiring or contracting with a person under section 12-558.03 about hiring employees with prior convictions.

 

It is important to note that sealing a criminal record is not the same as expunging it. Sealing means that the records are no longer available to the general public, but they may still be accessed by law enforcement agencies and used in certain legal proceedings. For example, they may be: alleged as an element of an offense, considered a historical prior for a felony conviction, admissible for impeaching any party or witness in a subsequent trial or to enhance a subsequent felony, used to enhance the sentences (28-1381 & 28-1382), pleaded and proved in any subsequent prosecution, used as a conviction if the conviction would be admissible if it was not sealed.

Where Do you File a Seal Petition?

The person shall file a petition to seal all case records in the court in which the person was convicted of an offense, the court in which an indictment, criminal citation, or complaint against the person was filed and the person was either found not guilty, their conviction was vacated or the charges were dismissed. If the complaint was filed in a justice court and subsequent information was filed, the petition must be filed in a superior court. A person shall file the petition in the court in which they had their initial appearance if no charges were filed, or the superior court in the county where the person was arrested if they did not have an initial appearance and no charges were filed.

How Long Is the Process to Seal a Record?

It takes on average 2-3 months. The courts may not rule in favor of, or deny the petition until at least thirty calendar days after the petition was received unless the court gets notified that all involved parties have been notified, i.e., the prosecutor and all victims that have requested to receive postconviction notices and there is no objection to the petition. Unless a hearing is requested by the petitioner, prosecutor, or victim, the court may grant or deny the petition to seal records without holding a hearing. If a petition does not meet the requirements prescribed in this section, the court may dismiss it without a hearing. If the court denies a petition to seal records, a new petition may not be filed until three years after the date of denial.

What Happens if The Petition to Seal is Granted

The court shall grant the petition if it is determined that granting the petition to seal records is in the petitioner’s best interest and the public’s safety. If granted, the clerk of the court shall provide a copy of the petition and all corresponding case records to the prosecutor, who may respond to the petition and request a hearing. The victim has the right to be present and heard at any proceeding regarding their case, including one in which the defendant has filed a petition to seal case records. If the victim had requested postconviction notice, the prosecutor shall provide the victim with their right, and the petition to seal records.

Once a petition to seal records is filed, the court must notify the department of public safety, requesting the petitioner’s state and federal arrests, prosecutions, convictions, and any other information that the court requests or that the department believes will assist the court in making an informed decision. The department of public safety must ensure the records are sealed within the department’s records and shall inform all appropriate state and federal law enforcement agencies of the action. The department may charge the petitioner a fee, determined by the director, to correct or update the petitioner’s criminal history, unless the petitioner is: indigent, has been found not guilty, or the case was dismissed or not prosecuted, and the petition was filed in the proper jurisdiction. The arresting and prosecuting agencies shall update all files and electronic records and make note that the records are sealed.

If the court grants the petition to seal case records: the court shall issue an order sealing all records relating to the arrest, conviction, and sentencing of the petitioner. The clerk of the court is to notify the department of public safety and the prosecutor of the sealing order. The clerk may not provide these sealed case records to any person or entity not listed as an exclusion.

What Does a Sealed Record Provide You?

When the petitioner’s records are sealed, they may state that they have never been arrested for, charged with, or convicted of a crime when responding to questions about employment, housing, financial aid, or loan applications. The exceptions to this are:

1. If the person is submitting an application that requires fingerprint clearance
2. The sealed case records involved a violation of chapter 34 (relating to drug offenses)
3. The sealed records involved burglary or theft from residential and no residential structures and the person is applying for a job that requires them to enter and perform services inside of a residential structure
4. The sealed records involved child abuse or aggravated assault and the petitioner is applying for a job involving supervising, educating, or administering care to a minor.
5. The records sealed involve the abuse of a vulnerable adult, and the person is applying for a job involving supervising or administering care to a vulnerable adult or person at least 65 years old.
6. The sealed records contain a violation of DUI, extreme DUI, second offense DUI, or theft of transportation charges and the person is applying for a job involving the operation of a motor vehicle, boat, or aircraft either commercially or privately. These can be found in sections: 5-395.01, 5-396, 5-397, 13-1814, 28-1381, 28-1382, 28-1383, 28-8282, 28-8284, 28-8286, 28-8287, 28-8288.
7. The sealed records include theft of means of transportation, forgery, or taking the identity of another by way of fraud, schemes, or artifices and they are applying for a job involving accounting, overseeing, transporting, handling of, or managing another person’s financial assets.
8. The petitioner is applying for a job with a law enforcement agency, a prosecutor’s office, a court, a probation department, a child welfare agency (defined in section 8-501), department of child safety, department of juvenile corrections or the state department of corrections.
9. The person is undergoing a background check with the department of child safety, for the placement of a child in the department’s custody, with the petitioner.
10. State or federal law requires disclosure.
11. The disclosure is required with Medicare, Medicaid, or other federal health care programs with integrity provisions.
12. The person’s employer is not required to or liable for hiring or contracting with a person under section 12-558.03 about hiring employees with prior convictions.

If the petitioner is granted a sealing of records, those records should be made available for the following: the person whose records are sealed and any attorney who has filed a notice to appear on behalf of the petitioner, the victim in a case if the victim has exercised their rights according to section 13-4414, involving the victim’s postconviction rights. Any of the following places about the operation of the requesting party’s official duties, hiring practices, or both, may request access to sealed records: A law enforcement agency, a prosecuting agency when requested by the one charged with a criminal offense or their attorney of record, a probation department or agency, a court, the department of child safety or any child welfare agency, the department of juvenile corrections, the state department or any correctional facility in the state, or the clerk of the court or any department responsible for maintaining court records.

             Does the Sealing of Records Erase the Record?

Short answer is “no”. The record is just sealed from the majority of public viewership. Being granted a sealing of records also does not affect the right of a law enforcement agency to maintain an arrest and or conviction record and to discuss the content of the sealed records with prosecuting agencies, courts, probation departments, and other law enforcement agencies when a purpose is deemed necessary (subsection J), or in a civil action that arises out of the facts of an arrest or to the Arizona peace officer standards and training board to determine the fitness of the petitioner to serve as a peace officer.

 

If you are interested in learning about getting your case sealed- visit azexpungementlawyer.com