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Fingerprint Clearance Card

We’ve found that a lot of our clients have something called an “Arizona Fingerprint Clearance Card.”

As you might expect, The Arizona Department of Public Safety (the State Police) requires that every school teacher not only have a teaching license, but a special “fingerprint clearance card,” but there are thousands of other people have to have them: the school janitor has one; the lunch ladies; the bus driver; the kindergarten volunteers; the little league coach; all the minimum wage childcare workers. The list goes on.

We did extensive research in this area of law and found that these fingerprint clearance cards were pretty easy to lose– sometimes merely getting a ticket for certain things in Arizona such as “criminal damage” would by itself get the card automatically “suspended.” Presto. The person loses her job. Maybe one she’s had for ten years.

For these reasons, attorneys should take special care when representing a client in a criminal matter who holds any form of Arizona fingerprint clearance card. Because suspension is triggered upon arrest for a myriad of common crimes, and review as a practical matter is slow, an expedited and carefully planned resolution is critical. Helping our clients to not only navigate these treacherous regulatory waters, but in fact helping them realize that they are immersed in them in the first place, is in my view paramount to effective representation.

To better assess these consequences, we compiled information on the fingerprint clearance card laws and the most common low level crimes that we were getting lots of calls on: simple marijuana possession; simple assault; misdemeanor DUI; criminal damage; misdemeanor domestic offenses, etc.—to see how you could lose your card, and whether you have a chance of getting it back.

Background

Through House Bill 2585 (1998), the Arizona Legislature erected a regulatory apparatus known as “fingerprint clearance cards” (and a wholly new administrative agency, known as the Arizona Board of Fingerprinting). With no analogue in any other state, this regulatory system placed licensing, and employment, almost exclusively into the hands of the police. Fingerprint clearance cards are required in addition to professional licensing from a state licensing board and, unlike a pre-employment criminal background check, are monitored on-going with new criminal records being automatically flagged, as they arise. The 1998 legislation gave DPS the unilateral authority to summarily suspend fingerprint clearance cards upon arrest for over 100 enumerated “precluding offenses,” including many misdemeanors.

This system has grown tremendously and, in a number of ways outlined in the sections below, serves as a paradigmatic example of the paralyzing power of the collateral consequences of common crimes.

Who Needs a Card?

As of 2014, the Arizona Legislature mandates a “fingerprint clearance card” for at least 42 vocational groups, more than double the original number. While the fingerprint clearance card system was initially implemented to screen a finite group of working professionals who, in the scope of their duties, would interact with “children, the elderly, or vulnerable adults,” Arizona now requires fingerprint clearance cards for hundreds of thousands of support staff, unpaid volunteers, and students, and for vocational categories from “real estate” to “game and fish.”

In 2014 alone, 104,161 individuals applied for Arizona fingerprint clearance cards. And those hundred thousand were in addition to the 152,062 individuals who submitted “applicant fingerprint cards” to DPS as part of the normal application process for professional licensure. Every year since 2011, at least 100,000 individuals have applied for fingerprint clearance cards. Therefore, it is likely that now at least a half a million Arizona vocational workers, volunteers and students are required to hold them.

Level I Clearance vs. Standard Clearance

In 2009, the Arizona Legislature significantly amended HB 2585, creating a new heightened class of fingerprint clearance card. Termed statutorily “level I clearance,” this classification, perhaps to address “mission-creep,” merely identified those who the fingerprint clearance cards were originally designed to protect: “children, the elderly, or vulnerable adults.” All others vocational categories included in the legislation, including an expansive array of real estate appraisers, driving school owners, and students, were now termed “standard clearance” holders. A full list of currently covered level I and standard clearance vocational groups is set out below.

Level I Clearance Holders

  • Adoptive parents, (DES)
  • Board of Fingerprinting members & personnel
  • Child care group home licensees, personnel and volunteers, (DHS)
  • Child care facility licensees, personnel and volunteers, (DHS)
  • Child care home providers, (DES)
  • Day care center licensees, personnel and volunteers, (DHS)
  • DES day care home personnel, (DES)
  • Department of Child Safety employees with child contact or IT role, (DES)
  • Department of Child Safety child safety workers, (DES)
  • State Hospital employees and volunteers, (DHS)
  • Developmental-home licensure, (DES)
  • Department of Developmental Disabilities licensees, employees, contractors and volunteers, (DES)
  • Foster-home licensees, (DES)
  • DES employees with child contact or IT role, (DES)
  • Game and Fish Department employees and volunteers
  • State Board of Public Welfare licensees, contractors, personnel and volunteers, (DES)

Standard Clearance Holders

  • Children’s Behavioral Health Program worker
  • Childcare worker for entity receiving federal child care food program funds
  • DV Victim’s Shelter workers and volunteers
  • Surrogate parents
  • Juvenile Probation Services personnel and contractors
  • Juvenile Corrections workers and contractors
  • Nursing Care Institution Administrator
  • Nursing Home and Residential Care Institutions employees, owners and contractors
  • Driving School owners and partners
  • Real Estate salesperson or broker
  • Students – Post-Secondary Health Education
  • Students – Adult Vocational Education
  • Teacher/other personnel – Charter Schools
  • Teacher/other personnel – Public Schools
  • Non-certificated personnel – Public Schools
  • Superintendent – Public Schools
  • Teacher/ all personnel – Schools for Deaf and Blind
  • Real estate appraisers

Suspension, Revocation & Denial of Fingerprint Clearance

A key feature of the legislation is that DPS summarily suspends the clearance of any credential holder upon arrest for any precluding offense. A.R.S. § 41-1758.03 (B) & (C) provides: “A person who…is awaiting trial on or who has been convicted of committing or attempting, soliciting, facilitating or conspiring to commit one or more of the following offenses . . . is precluded from receiving a fingerprint clearance card.” A.R.S. § 41-1758.07 (B) & (C), containing identical language, applies separately to level I clearance holders. The term “awaiting trial” in both provisions means “arrested.”

A.R.S. §§ 41-1758.03 (B) & (C) and 41-1758.07 (B) & (C) collectively list over 100 individual precluding offenses, including many common misdemeanors involving domestic violence, drugs and alcohol, such as DUI.

Good Cause Exceptions

Moreover, A.R.S. §§ 41-1758.03 (C) and 41-1758.07 (C) distinguish precluding offenses where “good cause exceptions” are available. A form of administrative review, good cause exception petitions are handled by the Arizona Board of Fingerprinting, a separate administrative agency created by the Legislature in 1998. The suspended clearance holder submits a petition, which can take up to four months or more for the Board of Fingerprinting to review. In the interim the suspension remains in effect. However, the availability of a good cause exception is obviously an important distinguishing factor, and may suggest the need for careful early litigation planning, expedited resolution, preemptive treatment, and a timely petition for good cause review.

Where a good cause exception is available, it can make sense to get an early jump on counseling, such as the statutorily mandated 26 hours of domestic violence treatment classes, or the 16 hours of alcohol education, even if outright dismissal is a possibility. If you have a fingerprint clearance card and are facing criminal charges, you should discuss these options with your attorney at your initial consultation.

Standard Clearance Precluding Offenses, Good Cause Exception Available

Per A.R.S. § 41-1758.03 (C), standard fingerprint clearance cards are suspended upon arrest for the following crimes, with GOOD CAUSE EXCEPTION AVAILABLE:

  1. Manslaughter.
  2. Endangerment.
  3. Threatening or intimidating.
  4. Assault.
  5. Unlawfully administering intoxicating liquors, narcotic drugs or dangerous drugs.
  6. Assault by vicious animals.
  7. Drive by shooting.
  8. Assaults on officers or fire fighters.
  9. Discharging a firearm at a structure.
  10. Indecent exposure.
  11. Public sexual indecency.
  12. Aggravated criminal damage.
  13. Theft.
  14. Theft by extortion.
  15. Shoplifting.
  16. Forgery.
  17. Criminal possession of a forgery device.
  18. Obtaining a signature by deception.
  19. Criminal impersonation.
  20. Theft of a credit card or obtaining a credit card by fraudulent means.
  21. Receipt of anything of value obtained by fraudulent use of a credit card.
  22. Forgery of a credit card.
  23. Fraudulent use of a credit card.
  24. Possession of any machinery, plate or other contrivance or incomplete credit card.
  25. False statement as to financial condition or identity to obtain a credit card.
  26. Fraud by persons authorized to provide goods or services.
  27. Credit card transaction record theft.
  28. Misconduct involving weapons.
  29. Misconduct involving explosives.
  30. Depositing explosives.
  31. Misconduct involving simulated explosive devices.
  32. Concealed weapon violation.
  33. Possession and sale of peyote.
  34. Possession and sale of a vapor-releasing substance containing a toxic substance.
  35. Sale of precursor chemicals.
  36. Possession, use or sale of marijuana, dangerous drugs or narcotic drugs.
  37. Manufacture or distribution of an imitation controlled substance.
  38. Manufacture or distribution of an imitation prescription-only drug.
  39. Manufacture or distribution of an imitation over-the-counter drug.
  40. Possession or possession with intent to use an imitation controlled substance.
  41. Possession or possession with intent to use an imitation prescription-only drug.
  42. Possession or possession with intent to use an imitation over-the-counter drug.
  43. Manufacture of certain substances and drugs by certain means.
  44. Adding poison or other harmful substance to food, drink or medicine.
  45. A criminal offense involving criminal trespass and burglary under title 13, chapter 15.
  46. A criminal offense under title 13, chapter 23.
  47. Child neglect.
  48. Misdemeanor offenses involving contributing to the delinquency of a minor.
  49. Offenses involving domestic violence.
  50. Arson.
  51. Kidnapping.
  52. Felony offenses involving sale, distribution or transportation of, offer to sell, transport or distribute or conspiracy to sell, transport or distribute marijuana, dangerous drugs or narcotic drugs.
  53. Robbery.
  54. Aggravated assault.
  55. Felony offenses involving contributing to the delinquency of a minor.
  56. Negligent homicide
  57. Criminal damage.
  58. Misappropriation of charter school monies as prescribed in section 13-1818.
  59. Taking identity of another person or entity.
  60. Aggravated taking identity of another person or entity.
  61. Trafficking in the identity of another person or entity.
  62. Cruelty to animals.
  63. Prostitution.
  64. Sale or distribution of material harmful to minors through vending machines as prescribed in section 13-3513.
  65. Welfare fraud.

Standard Clearance Precluding Offenses, No Good Cause Exception Available

Per A.R.S. § 41-1758.03 (B), fingerprint clearance cards are suspended upon arrest for the following crimes, with NO GOOD CAUSE EXCEPTION AVAILABLE:

  1. Sexual abuse of a vulnerable adult
  2. Incest
  3. First or second degree murder
  4. Sexual assault
  5. Sexual exploitation of a minor.
  6. Sexual exploitation of a vulnerable adult.
  7. Commercial sexual exploitation of a minor.
  8. Commercial sexual exploitation of a vulnerable adult.
  9. Child prostitution as prescribed in section 13-3212.
  10. Child abuse.
  11. Abuse of a vulnerable adult.
  12. Sexual conduct with a minor.
  13. Molestation of a child.
  14. Molestation of a vulnerable adult.
  15. A dangerous crime against children as defined in section 13-705.
  16. Exploitation of minors involving drug offenses.
  17. Taking a child for the purpose of prostitution as prescribed in section 13-3206.
  18. Neglect or abuse of a vulnerable adult.
  19. Sex trafficking.
  20. Sexual abuse.
  21. Production, publication, sale, possession and presentation of obscene items as prescribed in section 13-3502.
  22. Furnishing harmful items to minors as prescribed in section 13-3506.
  23. Furnishing harmful items to minors by internet activity as prescribed in section 13-3506.01.
  24. Obscene or indecent telephone communications to minors for commercial purposes as prescribed in section 13-3512.
  25. Luring a minor for sexual exploitation.
  26. Enticement of persons for purposes of prostitution.
  27. Procurement by false pretenses of person for purposes of prostitution.
  28. Procuring or placing persons in a house of prostitution.
  29. Receiving earnings of a prostitute.
  30. Causing one’s spouse to become a prostitute.
  31. Detention of persons in a house of prostitution for debt.
  32. Keeping or residing in a house of prostitution or employment in prostitution.
  33. Pandering.
  34. Transporting persons for the purpose of prostitution, polygamy and concubinage.
  35. Portraying adult as a minor as prescribed in section 13-3555.
  36. Admitting minors to public displays of sexual conduct as prescribed in section 13-3558.
  37. Unlawful sale or purchase of children.
  38. Child bigamy.
  39. Trafficking of persons for forced labor or services

Level I Precluding Offenses, Good Cause Exception Available

Per A.R.S. § 41-1758.07 (C), Level I fingerprint clearance cards are suspended upon arrest for the following crimes, with GOOD CAUSE EXCEPTION AVAILABLE:

  1. Any misdemeanor offense in violation of title 13, chapter 12.
  2. Misdemeanor indecent exposure.
  3. Misdemeanor public sexual indecency.
  4. Aggravated criminal damage.
  5. Theft.
  6. Theft by extortion.
  7. Shoplifting.
  8. Forgery.
  9. Criminal possession of a forgery device.
  10. Obtaining a signature by deception.
  11. Criminal impersonation.
  12. Theft of a credit card or obtaining a credit card by fraudulent means.
  13. Receipt of anything of value obtained by fraudulent use of a credit card.
  14. Forgery of a credit card.
  15. Fraudulent use of a credit card.
  16. Possession of any machinery, plate or other contrivance or incomplete credit card.
  17. False statement as to financial condition or identity to obtain a credit card.
  18. Fraud by persons authorized to provide goods or services.
  19. Credit card transaction record theft.
  20. Misconduct involving weapons.
  21. Misconduct involving explosives.
  22. Depositing explosives.
  23. Misconduct involving simulated explosive devices.
  24. Concealed weapon violation.
  25. Misdemeanor possession and misdemeanor sale of peyote.
  26. Felony possession and felony sale of peyote if committed more than five years before the date of applying for a level I fingerprint clearance card.
  27. Misdemeanor possession and misdemeanor sale of a vapor-releasing substance containing a toxic substance.
  28. Felony possession and felony sale of a vapor-releasing substance containing a toxic substance if committed more than five years before the date of applying for a level I fingerprint clearance card.
  29. Misdemeanor sale of precursor chemicals.
  30. Felony sale of precursor chemicals if committed more than five years before the date of applying for a level I fingerprint clearance card.
  31. Misdemeanor possession, misdemeanor use or misdemeanor sale of marijuana, dangerous drugs or narcotic drugs.
  32. Felony possession, felony use or felony sale of marijuana, dangerous drugs or narcotic drugs if committed more than five years before the date of applying for a level I fingerprint clearance card.
  33. Misdemeanor manufacture or misdemeanor distribution of an imitation controlled substance.
  34. Felony manufacture or felony distribution of an imitation controlled substance if committed more than five years before the date of applying for a level I fingerprint clearance card.
  35. 35. Misdemeanor manufacture or misdemeanor distribution of an imitation prescription-only drug.

  36. Felony manufacture or felony distribution of an imitation prescription-only drug if committed more than five years before the date of applying for a level I fingerprint clearance card.
  37. Misdemeanor manufacture or misdemeanor distribution of an imitation over-the-counter drug.
  38. Felony manufacture or felony distribution of an imitation over-the-counter drug if committed more than five years before the date of applying for a level I fingerprint clearance card.
  39. Misdemeanor possession or misdemeanor possession with intent to use an imitation controlled substance.
  40. Felony possession or felony possession with intent to use an imitation controlled substance if committed more than five years before the date of applying for a level I fingerprint clearance card.
  41. Misdemeanor possession or misdemeanor possession with intent to use an imitation prescription-only drug.
  42. Felony possession or felony possession with intent to use an imitation prescription-only drug if committed more than five years before the date of applying for a level I fingerprint clearance card.
  43. Misdemeanor possession or misdemeanor possession with intent to use an imitation over-the-counter drug.
  44. Felony possession or felony possession with intent to use an imitation over-the- counter drug if committed more than five years before the date of applying for a level I fingerprint clearance card.
  45. Misdemeanor manufacture of certain substances and drugs by certain means.
  46. Felony manufacture of certain substances and drugs by certain means if committed more than five years before the date of applying for a level I fingerprint clearance card.
  47. Adding poison or other harmful substance to food, drink or medicine.
  48. A criminal offense involving criminal trespass and burglary under title 13, chapter 15.
  49. A criminal offense under title 13, chapter 23, except terrorism.
  50. Misdemeanor offenses involving child neglect.
  51. Misdemeanor offenses involving contributing to the delinquency of a minor.
  52. Misdemeanor offenses involving domestic violence as defined in section 13- 3601.
  53. Felony offenses involving domestic violence if the offense only involved criminal damage in an amount of more than two hundred fifty dollars but less than one thousand dollars and the offense was committed before June 29, 2009.
  54. Arson.
  55. Felony offenses involving sale, distribution or transportation of, offer to sell, transport or distribute or conspiracy to sell, transport or distribute marijuana, dangerous drugs or narcotic drugs if committed more than five years before the date of applying for a level I fingerprint clearance card.
  56. Criminal damage.
  57. Misappropriation of charter school monies as prescribed in section 13-1818.
  58. Taking identity of another person or entity.
  59. Aggravated taking identity of another person or entity.
  60. Trafficking in the identity of another person or entity.
  61. Cruelty to animals.
  62. Prostitution, as prescribed in section 13-3214.
  63. Sale or distribution of material harmful to minors through vending machines as prescribed in section 13-3513.
  64. Welfare fraud.
  65. Any felony offense in violation of title 13, chapter 12 if committed more than five years before the date of applying for a level I fingerprint clearance card.
  66. Kidnapping.
  67. Robbery, aggravated robbery or armed robbery.

Level I Clearance Precluding Offenses, No Good Cause Exception Available

Per A.R.S. § 41-1758.07 (B), Level I fingerprint clearance cards are suspended upon arrest for the following crimes, with NO GOOD CAUSE EXCEPTION AVAILABLE:

  1. Sexual abuse of a vulnerable adult.
  2. Incest.
  3. Homicide, including first or second degree murder, manslaughter and negligent homicide.
  4. Sexual assault.
  5. Sexual exploitation of a minor.
  6. Sexual exploitation of a vulnerable adult.
  7. Commercial sexual exploitation of a minor.
  8. Commercial sexual exploitation of a vulnerable adult.
  9. Child prostitution as prescribed in section 13-3212.
  10. Child abuse.
  11. Felony child neglect.
  12. Abuse of a vulnerable adult.
  13. Sexual conduct with a minor.
  14. Molestation of a child.
  15. Molestation of a vulnerable adult.
  16. Dangerous crimes against children as defined in section 13-705.
  17. Exploitation of minors involving drug offenses.
  18. Taking a child for the purpose of prostitution as prescribed in section 13-3206.
  19. Neglect or abuse of a vulnerable adult.
  20. Sex trafficking.
  21. Sexual abuse.
  22. Production, publication, sale, possession and presentation of obscene items as prescribed in section 13-3502.
  23. Furnishing harmful items to minors as prescribed in section 13-3506.
  24. Obscene or indecent telephone communications to minors for commercial purposes as prescribed in section 13-3512.
  25. Luring a minor for sexual exploitation.
  26. Enticement of persons for purposes of prostitution.
  27. Procurement by false pretenses of person for purposes of prostitution.
  28. Procuring or placing persons in a house of prostitution.
  29. Receiving earnings of a prostitute.
  30. Causing one’s spouse to become a prostitute.
  31. Detention of persons in a house of prostitution for debt.
  32. Keeping or residing in a house of prostitution or employment in prostitution.
  33. Pandering.
  34. Transporting persons for the purpose of prostitution, polygamy and concubinage.
  35. Portraying adult as a minor as prescribed in section 13-3555.
  36. Admitting minors to public displays of sexual conduct as prescribed in section 13-3558.
  37. Any felony offense involving contributing to the delinquency of a minor.
  38. Unlawful sale or purchase of children.
  39. Child bigamy.
  40. Any felony offense involving domestic violence as defined in section 13-3601 except for a felony offense only involving criminal damage in an amount of more than two hundred fifty dollars but less than one thousand dollars if the offense was committed before June 29, 2009.
  41. Any felony offense in violation of title 13, chapter 12 if committed within five years before the date of applying for a level I fingerprint clearance card.
  42. Felony drug or alcohol related offenses if committed within five years before the date of applying for a level I fingerprint clearance card.
  43. Felony indecent exposure.
  44. Felony public sexual indecency.
  45. Terrorism.
  46. Any offense involving a violent crime as defined in section 13-901.03.
  47. Trafficking of persons for forced labor or services.