Sealing Records Under Arizona’s New Law
Criminal records of arrests, even where charges are dismissed, and almost all convictions, even for minor offenses, can and do follow a person for years, impacting professional lives. Arizona as most you are probably aware by now is one of the states that does not generally offer true expungement of most adult criminal convictions and heretofore provided only limited relief for wrongful arrests where charges were dismissed, or where the matter involved only possessory amounts of marijuana
But as of January 1, 2023, Arizona’s much anticipated new record sealing law- ARS § 13-911– goes into effect. Be aware however, that it is a law that is replete with limitations, exceptions , qualifications exclusions. In this blog I will try to offer a basic roadmap to sealing your records of arrest or conviction, and providing some gentle words of caution.
The Difference Between a Record of Arrest vs. Conviction
It may seem obvious: you know when you have been convicted—and you know when you have been arrested but the charges are later dismissed. But for some of you, the mere accusation of criminal wrongdoing has followed you in your professional life.
So, the first thing to understand is that Arizona’s new sealing law, ARS § 13-911 applies to both convictions and arrests where the charges were dismissed.
The Difference Between Expungement and Sealing
Expungement connotes the actual destruction of the record. Sealing doesn’t go quite as far. Sealing means that your criminal record of arrest or conviction will be hidden from public view, but still available to the government, and some employers, to be used against you in various ways.
So, the second thing to understand is that Arizona’s new law allows persons with certain arrests and convictions to be sealed but not expunged. This means, with certain qualifications that you are able to answer “no” on many private sector job applications but not all.
What Records of Conviction Cannot be Sealed
The major non-sealable convictions include any offense involving the use or exhibition of a deadly weapon or dangerous instrument, the infliction of serious injury, many violent or aggravated felonies, dangerous crimes against children, and most sex offense felonies (but not class six).
What Sealed Records would employers still have limited access to?
And remember that even sealable offenses can be used for employers under at least the following circumstances:
- Any position that requires an Arizona Fingerprint Clearance Card (health care, education, child care, real estate and more)
- Any position if you have a drug conviction
- Burglary or theft if the job involves entering any residential structure
- Aggravated assault or child abuse if the job involves caring for a minor
- Vulnerable Adult abuse if your job requires giving tore to persons or who sixty-five years old
- DUI if the job involves operation of a motor vehicle
- Forgery, identity theft, fraud, or theft and the jobs involves handling or managing money
- Any crime if you are seeking to be a foster or adoptive parent
- And most obviously, any crime if you are applying to work in law enforcement
Moreover, for all convictions there is a mandatory waiting period before you are eligible to apply to seal your record.
- Two years for a class 2 or 3 misdemeanor
- Three years for a class 1 misdemeanor
- Five years for a class 4,5, or 6 felony
- Ten years for a class 2 or 3 felony
This waiting period clock begins to run when all parts of sentence and probation are complete.
If the record is for arrest only but not conviction there does not seem to be a waiting period.
Penalty for Applying and being Denied
Most frighteningly and one thing to be particularly cautious about is that under 13-911(L), if you apply to seal and are denied you “may not file a new petition until three years after the date of denial.”
How To Apply to Have Your Record of Arrest or Conviction Sealed
Every Court in Arizona is supposed to be implementing procedures, and forms that you can fill out to have your record sealed. Check with the court website of the court where you were convicted. You can probably download the forms.
The process will take some time, and the judge could set a hearing especially of your case involved a victim.
You want to be sure that you do a full and complete application because if you are denied you cannot apply for three years from date of denial.
Key Take Aways
If you have an old Arizona arrest or conviction you may want to look into the possibility of sealing your record. Check with the court website, and prepare your application carefully, so that you are not denied and then have to wait another three years.
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About Michael Harwin
Michael’s skill and experience have been recognized repeatedly. He holds an A-V 5/5 preeminent rating by Martindale Hubbell. He has been named one of the top lawyers in Arizona by Southwest Superlawyers, and one of the best lawyers in Tucson by Tucson Lifestyle Magazine. He also has been named one of the best lawyers in the United States by BestofUS.com , and given the highest rating possible by AVVO, 10/10 Superb. Amazon Books