Expungement is the process of legally destroying a criminal or other public record. Arizona legislators use the term “set aside” rather than “expunge” for this process because the record is not actually eliminated, although you can tell an employer or public official that your conviction was vacated or dismissed. Sealing your record in Arizona means having it hidden from public view, and this applies only to certain limited situations.
What is Expungement or Sealing?
Arizona only has a “set aside” statute. The state does not expunge or erase criminal records for public policy reasons. If anyone does a background check on you, it will reveal that a felony conviction was set aside or that the judgment of conviction was vacated.
Record clearance or sealing is limited to situations where you were wrongfully arrested, indicted or charged. Records of unlawful arrests or charges can still be accessed with a court order, but they are not available to the general public. Your record remains on file with the Arizona Central State Repository. After you get an order sealing your record, you can truthfully state that you have never been arrested or charged.
If your conviction is set aside, your public record will nonetheless indicate that you had a conviction vacated or dismissed. It will state that you successfully completed all court-ordered conditions, such as serving your sentence, concluding probation, or participating in court-mandated programs. Arizona may still use your conviction when prosecuting a subsequent criminal charge and conviction for sentence enhancement purposes.
An Arizona set aside order has limited legal implications. You must still disclose your conviction, although a set aside order will typically restore most of your civil rights, such as voting, holding public office, or serving on a jury. You can restore your firearm rights despite a felony conviction, but this involves a separate court order. A set aside order has no impact on the Department of Transportation's decision as to whether to suspend or revoke your driver’s license. Generally, a set aside order is intended to lessen the negative aspects of your criminal conviction for employment, housing and other purposes.
If you have had a misdemeanor conviction set aside, your record is not publicly accessible and you may truthfully state on an employment application that you were never convicted.
Are You Eligible?
You are not eligible for a set aside order if you have a prior criminal record, or if your offense involves certain types of felonies or misdemeanors:
- Infliction of serious bodily harm
- Use of a firearm or deadly weapon in commission of the crime
- Registration as a sex offender
- A court finding of sexual motivation
- Your victim was under 15 years of age
- A violation of a local ordinance regarding standing, stopping or operation of a vehicle
What Do I Need to Do?
There are a number of prerequisites to obtaining an order that seals or sets aside your criminal record, or that vacates your conviction. You cannot file an application until two years have passed from your prison discharge date. The application requires that you give the date of your arrest, the date when your judgment of guilt or conviction was entered, the date the superior court signified your completion of all conditions of probation, and the date of your absolute discharge from incarceration. All this information is publicly available in your criminal record file at the clerk’s office in the county or with the superior court where you were convicted.
Should I Consult a Lawyer?
Arizona’s laws regarding setting aside or vacating convictions and sealing criminal records are complex. Contact an Arizona criminal defense lawyer to find out if you are eligible to have your conviction set aside or sealed and how an order may affect your personal circumstances.