Arizona “Setting Aside” Criminal Records Law as of August 2021

Arizona Governor, Doug Ducey, recently amended the Arizona Revised Statute to allow individuals with certain criminal convictions to “set aside” these prior convictions and receive a Certificate of Second Chance from the Court. The amendment will take effect in August of 2021.

The state of Arizona does not have a true expungement law that would completely erase convictions from an individual’s record, however the law will permit individuals who fulfill their probation or sentence obligations to apply to the court to have certain prior convictions set aside and to receive a second chance certificate for employment, housing, and occupational licensing purposes.

The law will not apply to all criminal convictions. Convictions excluded from being set aside include but are not limited to the following:

• Driving on a suspended license.
• Violations of ARS Title 28, Chapter 3, which include criminal speeding, felony flight, aggressive driving, and hit and run.
• Convictions involving a deadly weapon or convictions involving infliction of serious physical injury.
• Convictions requiring the individual to register as a sexual offender or for offender monitoring.
• Sexual motivation convictions.
• Convictions involving victims under age 15.

Applicants eligible for this “setting aside” process includes:

• Persons previously convicted of misdemeanors.
• Persons previously convicted of class 4, 5, or 6 felonies, if at least two years has passed since fulfilling the sentence or probation requirements.
• Persons previously convicted of class 2 or 3 felonies, if at least 5 years has passed since fulfilling the sentence or probation requirements.

If an application for setting aside prior convictions is granted, employers and landlords conducting a background check will find a notation next to the criminal conviction indicating that the conviction has been set aside.

The amended law also includes limited employer liability protection and will extend some of these limited liability protections to landlords/housing providers. For employers, an employer will not be held liable for hiring an employee or independent contractor who has received a certificate for alleged negligent hiring. Also, criminal convictions that occurred before the employee or independent contractor began working for the company may not be introduced into evidence.

For landlords/housing providers, criminal convictions that occurred before the person’s contractual obligation began with the landlord/housing provider may not be introduced into evidence.

Specifically, the new amendment section of the law states are in ALL CAPITALS:

13-905 A. Except as provided in subsection N of this section, every person convicted of a criminal offense, on fulfillment of the conditions of probation or sentence and discharge by the court, may apply to the court to have the judgment of guilt set aside.

THE COURT MAY ISSUE AN ORDER THAT INCLUDES A CERTIFICATE OF SECOND CHANCE TO A PERSON WHOSE JUDGMENT OF GUILT IS SET ASIDE PURSUANT TO SUBSECTION K OR L OF THIS SECTION.

C. The court shall consider the following factors when determining whether to set aside the conviction:

• The nature and circumstances of the offense that the conviction is based on
• The applicant’s compliance with the conditions of probation, the sentence imposed and any state department of corrections’ rules or regulations, if applicable.
• Any prior or subsequent convictions.
• The victim’s input and the status of victim restitution, if any.
• The length of time that has elapsed since the completion of the applicant’s sentence.
• The applicant’s age at the time of the conviction.
• Any other factor that is relevant to the application.

D. If the application is granted, the court shall set aside the judgment of guilt, dismiss the complaint, information or indictment and order that the person be released from all penalties and disabilities resulting from the conviction except those imposed by:

1. The department of transportation pursuant to section 28-3304, 36 28-3305, 28-3306, 28-3307, 28-3308, 28-3312 or 28-3319.
2. The game and fish commission pursuant to section 17-314 or 38 17-340.

F. The clerk of the court must notify the department of public safety if a conviction is set aside. The department of public safety must update the person’s criminal history with an annotation that the conviction has been set aside AND, IF APPLICABLE, A CERTIFICATE OF SECOND CHANCE HAS BEEN ISSUED but may not redact or remove any part of the person’s record.

K. IF THE COURT GRANTS THE APPLICATION TO SET ASIDE THE JUDGMENT OF GUILT, THE COURT’S ORDER MUST INCLUDE A CERTIFICATE OF SECOND CHANCE IF THE PERSON HAS NOT PREVIOUSLY RECEIVED A CERTIFICATE OF SECOND CHANCE AND THE PERSON WAS CONVICTED OF A MISDEMEANOR, IF THE PERSON WAS CONVICTED OF A CLASS 4, 5 OR 6 FELONY AND AT LEAST TWO YEARS HAVE ELAPSED SINCE THE PERSON FULFILLED THE CONDITIONS OF PROBATION OR SENTENCE OR IF THE PERSON WAS CONVICTED OF A CLASS 2 OR 3 FELONY AND AT LEAST FIVE YEARS HAVE ELAPSED SINCE THE PERSON FULFILLED THE CONDITIONS OF PROBATION OR SENTENCE.

THE CERTIFICATE OF SECOND CHANCE:

1. PROVIDES AN EMPLOYER OF THE PERSON WITH ALL OF THE PROTECTIONS THAT ARE PROVIDED PURSUANT TO SECTION 12-558.03.
2. PROVIDES ANOTHER PERSON OR AN ENTITY THAT PROVIDES HOUSING TO THE PERSON WITH ALL OF THE PROTECTIONS LIMITING THE INTRODUCTION OF EVIDENCE THAT ARE PROVIDED TO AN EMPLOYER PURSUANT TO SECTION 12-558.03, SUBSECTION B.

L. IF THE COURT DOES NOT ISSUE AN ORDER THAT INCLUDES A CERTIFICATE OF SECOND CHANCE WHEN THE PERSON’S CONVICTION IS SET ASIDE, THE PERSON MAY APPLY TO THE COURT FOR A CERTIFICATE OF SECOND CHANCE AFTER MEETING THE REQUIREMENTS PRESCRIBED IN SUBSECTION K OF THIS SECTION.

N. This section does not apply to a person who was convicted of any of the following:

1. A dangerous offense.
2. An offense for which the person is required or ordered by the court to register pursuant to section 13-3821.
3. An offense for which there has been a finding of sexual motivation pursuant to section 13-118.
4. A felony offense in which the victim is a minor under fifteen years of age.
5. An offense in violation of section 28-3473, any local ordinance relating to stopping, standing or operation of a vehicle or title 28, chapter 3, except a violation of section 28-693 or any local ordinance relating to the same subject matter as section 28-693.

The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage Corporation makes no assurances regarding the accuracy, completeness, currency or utility of the above information. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly.