Effective January 1, 2023, a new and very important law, A.R.S. § 13-911, goes into effect in Arizona, that allows most felony and misdemeanor criminal conviction records to be sealed from public view. Prior to this law, Arizona was one of a handful of states whose legislature had made no provision for limiting public access to conviction records, and was literally the only state in the country whose courts and records repository had no authority to seal non-conviction records. Now the state will have one of the broadest sealing laws in the country. The law does not limit either the number of convictions that can be sealed or the number of times a person can make the request. However, if the Court denies the Petition to Seal Case Records, a new petition cannot be filed for another three (3) years.
The applicable procedures are fairly straightforward, with no hearing necessary unless the prosecutor or victim requests it, and the court required to grant relief if it determines that “granting the petition is in the best interests of the petitioner and the public’s safety.”
So Who is Eligible Under this New Law in Arizona?
Any person may file a petition to seal all case records related to a criminal offense if the person was:
- Convicted of a criminal offense and has completed all of the terms and conditions of the sentence imposed by the court, including the payment of all monetary obligations and restitution to all victims.
- Charged with a criminal offense and the charge was subsequently dismissed or resulted in a not guilty verdict at a trial.
- Arrested for a criminal offense and no charges were filed.
All case records that are sealed may still be:
- Alleged as an element of an offense.
- Used as a historical prior felony conviction.
- Admissible for impeaching any party or witness in a subsequent trial.
- Used to enhance the sentence for a subsequent felony.
- Used to enhance the sentence in Driving Under the Influence matters.
- Pleaded and proved in any subsequent prosecution of the person by this state or a political subdivision of this state.
- Used as a conviction if the conviction would be admissible if the conviction was not sealed.
So what kind of cases are not eligible under this broad law? The law does not apply to the following circumstances:
- Sentenced as a dangerous offender pursuant to section 13-704.
- Convicted of a dangerous crime against children.
- Convicted of a serious offense or violent or aggravated felony.
- Convicted of any offense that has either of the following as an element of the offense:
- Convicted of sex trafficking.
- Convicted of a class 2, 3, 4 or 5 felony offense that is a sexual offense or sexual exploitation of a child.
There is a waiting period after the completion of the sentence and discharge.
Those periods depend on the seriousness of the offense:
- Class 2 and 3 felonies: 10 years
- Class 4, 5 and 6 felonies: 5 years
- Class 1 misdemeanor: 3 years
- Class 2 and 3 misdemeanors: 2 years.
If the person has “a prior historical felony conviction,” an additional five years is tacked on to the specified waiting period. Additionally, a person who is convicted of two or more offenses may not petition the court to seal the person’s case records until the period of time prescribed above has passed for each conviction.
The court may not rule on the Petition to Seal for at least thirty days, giving the prosecutor and all victims the right to be heard on the matter. The court must also request that the Arizona Department of Public Safety to prepare a report that includes the petitioner’s entire federal and state arrests and prosecutions, and “any other information that the court requests or that the Department believes will assist the court in making its determination. Unless the prosecutor or victim request a hearing, the court “shall grant” the petition if it determines that “granting the petition is in the best interests of the petitioner and the public’s safety.”
What does Sealing the Record Actually Do?
The Arizona Department of Public Safety is responsible for informing all appropriate state and federal law enforcement agencies that the record has been sealed. While a sealed record may be used variously in a subsequent prosecution, a person whose record has been sealed may state that they have never been arrested in response to questions on most applications for employment, housing, financial aid or loan applications. A lengthy list of employments related to specific types of offenses are excepted under the law.
What is the Difference between a Set Aside and the Sealing of a Record?
When criminal convictions are Set Aside, it allows the court to “set aside the judgment of guilt, dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction other than those imposed by the department of transportation”. But the original record is not destroyed and can still be used to deny an individual certain types kinds of employment, licenses, permits or certificates. The conviction can be used against the person in future criminal cases. The set aside, though, does not mandate that the conviction be removed from one’s criminal record.
When criminal records or arrests are sealed, they are hidden from public view. Sealing the record involves a different time line and procedure to seal the records. And, these records can still be seen by government officials and those who obtain a court order. This means that even though it may seem like a person’s criminal record no longer exists, there is still a record of it with the court.
So, if you have been convicted of a crime in Arizona, or even arrested for a crime in Arizona, there is an avenue to get it off your permanent record. Contact Robert A. Dodell, Attorney at Law, an experienced criminal defense attorney, to assist you with sealing your criminal record.