Sealing Criminal Records in Arizona Under The New Law
On January 1, 2023, a new statute ARS § 13-911 went into effect. This new statute allows courts to “seal” records of arrest and conviction. While not exactly the same, or as broad as expungement, it nevertheless allows a court to order that older arrests of many common crimes of conviction, and records of many arrests where the charges were later dropped, including through diversion programs, is a powerful new tool for defense attorneys and the public. This article covers the basic contours of Arizona’s new “sealing of records” statute, and some apparent limitations.
What Convictions are Excluded from Sealing?
Records of convictions of many serious offenses including those that involve the knowing infliction of serious physical injury, or violent or an aggravated offenses such as “kidnapping” and more serious sex offenses may not be sealed See ARS § 13-911(O). Similarly, drug offenses seem to be not meaningfully sealable. See ARR § 13-911 (I)(5)
What are the Waiting Periods for Sealing Convictions?
The waiting period after probation ends is : 2 years for Class two or three misdemeanors; three years for class one misdemeanors; five years for class four five or six felonies; and ten years for class two or three felonies. See ARS § 13-911(E).
However, if a person has two convictions, you can’t seal either one, until the waiting period has run for both. See Section 911(G). Moreover, if a person has a prior historical felony conviction the person may have to wait an additional five years. See Section 911(F).
What “Sealing” Doesn’t do
Even if your record is “sealed” the records can still be available to your attorney, a victim, a law enforcement agency, a prosecutor, a probation department, a court, a prison can still be used in court against you in a subsequent legal proceedings, for certain purposes. See Section 911(B).
Can I say I’ve Never Been Arrested?
According to the Statute a person whose records have been sealed “may state, in all instances, that the person has never been arrested for, charged of the crime” which is contained in the sealed record, “including in response to questions, on employment, housing financial aid or loan applications” but with certain limitations. See Section 911(I)(5).
However you can’t say “no” if have been charged or convicted of certain crimes such as a drug offenses theft, aggravated assault, a DUI, fraud, forgery identity theft especially if you’re applying for certain jobs. And you can’t say no if you’re applying for a fingerprint clearance card. See § 13-911(I)(5)(a)-(k)
Therefore, you have to look first and carefully at what type of job you are applying for, and then look at your sealed record of charge or conviction, before you may confidently say “No.”
Other Things to Be Careful About
If you petition to have your record sealed but the judge doesn’t grant it you can’t petition again for three years. See ARS § 13-911(L)
Moreover, “the court may dismiss a petition that does not meet the requirements prescribed.”
Most importantly, however, the sealing is far from automatic. The Court does not have to grant the petition. The prosecutor can oppose. If there’s a victim, the victim will be notified and could come to court and oppose your petition. The judge must consider the victim’s and the prosecutor’s positions. In the end the judge will only grant the petition “if the court determines that granting the petition is in the best interest of the petitioner and the public’s safety.” See§ 13-911(D). This gives judges a lot of discretion.
So as a practical matter, you will want to in your petition, probably include your resume, some support letters, your driving record (if the offense involved driving), and other materials to demonstrate to the judge, and prosecutor and victim that sealing will serve both your and the larger community interest.
Sealing Records of Dismissed Cases
There is no waiting period for petitioning to seal a record of a dismissed matter. But remember, it is not automatic. I think you want to put care into the petition and attach supporting documents such as the completion of diversion classes.
More importantly still, if you have sealed a record of a dismissed case, but are either applying for a fingerprint clearance card, have had a drug charge, or applying for certain types of jobs, and the application asks if you have ever been charged, look carefully at the list of job types in the statute that don’t allow you to say “no” in my view even if the charge is dismissed.
Arizona’s new sealing statute is a powerful way for people who have been charged or convicted of many common offenses, to be able to say “no” in many instances. But the statute is riddled with exceptions and limitations. Use care when petitioning, and even if granted, use care when answering applications for certain types of jobs. I hope this helps.
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About Michael Harwin
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