Rights Restoration And Sealing the Records Following a Criminal Conviction

BY ATTORNEY HOWARD F. DWORMAN

1) Type of Conviction:

In Arizona, a person can be convicted of a Misdemeanor or a Felony (or a combination of the two). A misdemeanor crime is punishable by no-more-than one year in jail, no-more-than three years on probation, and no-more-than $2,500.00 in fines and fees. An exception exists for misdemeanor DUI and Domestic Violence offenses; probation increases to no-more-than five years and fines are increased based on statute(s) and applicable municipal codes. Misdemeanors are handled in City/Municipal Courts or County Justice Courts.

Felonies are much more severe. Under State law, the maximum fine is $150,000.00 (plus an 83% surcharge) and probation can be up-to lifetime depending on the nature of the conviction. Generally, probation does not exceed seven years. Of course, depending on the crime, the court could order other statutory fines and penalties. Also, prison is available for all felonies and, for some, prison is madatory.

2) Why does this matter to you?

Well, if the conviction and punishment were this simple, I would not need to continue; you wouldn’t be reading this. However, you need to be aware of other punitive issues; collateral consequences that likely brought you to read this article.

For all felonies, you lose the following civil rights:

• Voting
• Hold public office
• Serve on a jury
• Obtain/maintain licensures
• Enlist in the military
• Possess a firearm

Additionally, most felony drug convictions (under ARS §13-3401) eliminate any eligibility to receive financial aid for college/higher education, social security benefits, and food stamps/government assistance opportunities. Other collateral consequences resulting from a felony conviction could include termination of parental/guardian rights and right to adopt a child; impede your ability to rent an apartment; impede your ability to find/maintain employment. Keep in mind, a felony conviction may affect other privileges many people often take for granted.  

In a general sense, and relatively speaking, misdemeanor convictions do not come with severe consequences. As I mentioned, felonies are “more severe” than misdemeanors. However, if you were convicted of a “Domestic Violence offense,” you are now considered a “Prohibited Processor” under Federal law pursuant to 18 U.S.C. §922(g)(9) a.k.a. the Brady Handgun Prevention Act.  Simply said, you cannot possess a firearm.

3) Can I do anything to get these rights restored?

Yes, almost certainly. In Arizona, your conviction may be “Set Aside” depending on a handful of factors. Arizona Senate Bill (SB 1189) provides, every person convicted of a criminal offense [some exceptions apply]” may apply to the sentencing court and request the conviction be “Set Aside” so long as your entire sentence is satisfied; you successfully completed all court-ordered terms and conditions.

You must understand, the court is not compelled to grant your motion.

Specific to Domestic Violence misdemeanor convictions, once your conviction is Set Aside, you or your attorney need to notify the Federal government to ensure you are no longer considered a “Prohibited Possessor.” How do you notify the Federal government? Log on to the NICS website, print and complete the appropriate forms, and send them to the address provided. I bet you are thinking: “how long will it take for NICS to process the paperwork?” This is often the most common question and is the “million-dollar question.” Unfortunately, NICS does not provide any timelines.  Theoretically, NICS could take as long as they want.  However, usually, if handled correctly, I have gotten client’s results within two or three months. Hiring an attorney to help with the NICS process may be beneficial.

4) How do I apply under SB 1189?

This is where the “may” (from #3) comes into play; the type of conviction becomes important. Pursuant to ARS §13-905, once your sentence is satisfied a person may apply to the court, “to have the judgment of guilt set aside.”

The application for set aside must be submitted to the court where the person was sentenced and must be before the same judge who imposed the sentence. If the sentencing judge is not available, the application will be submitted to the judge who took over the sentencing judge’s cases. The judge “shall” consider a series of factors when deciding on the person’s application: 1) Nature and circumstances of the offense; 2) the person’s compliance during their sentence; 3) prior or subsequent convictions; 4) Victim’s position (if applicable); 5) amount of time between conviction and application; 6) applicant’s age when convicted; 7) any other factor(s)—This is a “catch-all.”

Remember the “exceptions” I mentioned earlier? Pursuant to ARS 13-905(K), if the conviction is designated “dangerous,” you cannot apply to set aside the judgment. Furthermore, you cannot apply to set aside the judgment if the conviction requires registration pursuant to ARS 13-3821; includes a finding of sexual motivation pursuant to ARS 13-118; is a felony offense and the victim was under 15 years old; Driving on a Suspended License pursuant to ARS 28-3473, any offense under Chapter 3 of ARS Title 28 except DUIs.

If your conviction is designated “serious,” you must wait ten years after you completed your sentence before your gun rights are eligible for restoration.

5) Why is this not “Expungement?”

Arizona does not offer “expungement” for adult criminal convictions. However, if a juvenile court judge adjudicated the case, your conviction may be eligible for expungement, or even destruction.

Once all terms of your sentence have been successfully completed, and you satisfy the eligibility requirements (discussed below), you may apply for a Set Aside pursuant to ARS §8-348, and you may apply to destroy the Juvenile Record, pursuant to ARS §8-349.
Eligibility requirements for Set Aside and/or Destruction are:

• you must be at least 18 years old;
• have no adult felony convictions;
• the juvenile conviction could not have been:
  • Murder
  • Forcible Sexual Assault
  • Armed Robbery
  • Violent offenses
  • Some DUIs
  • Applicant can not be a “Chronic offender”
  • The offense(s) cannot be “dangerous”

6) Petition to Seal (even BETTER than Expungment)

Pursuant to A.R.S. 13-911, you can Petition the Court to Seal your conviction for the vast majority of crimes in Arizona.

Eligibility:

• You must have completed all terms and conditions of your sentence, including absolute discharge from the Department of Corrections (DOC). Also, there are specific timelines to be followed depending on the crime’s class:
  • Felonies
    • Class 2 or 3 – 10 years after all terms and conditions of are completed.
    • Class 4/5/6 – 5 years after all terms and conditions of are completed.
  • Misdemeanors
    • Class 1 – 3 years after all terms and conditions of are completed.
    • Class 2 or 3 – 2 years after all terms and conditions of are completed.
  • What about DISMISSED CASES OR WHEN THE JURY FINDS ME NOT GUILY?
    • No matter what class of offense:
      • No time period exists.
      • Immediately eligible upon dismissal or a NOT GUILTY verdict.

How long will it take for the Petition to be ruled on?

• The Court must wait 30 days from the date the Petition is filed.
  • Court must notify the prosecutor and give time to respond;
  • Court must notify opted-in victims and give time to respond;
  • A hearing may be required if the State or Victim object, or any of the parties request a hearing.

What is the Standard of Review?

• Merely “best interest” of the petitioner (you) AND the public’s safety.

What are the benefits?

• Once Sealed, you no longer have to disclose the conviction(s) on any application, test, or any other document that may ask or requires you to disclose the conviction. You no longer have to admit to being arrested or charged.  Arizona Department of Public Safety (DPS) must designate the records as “sealed,” and the arresting agency and prosecuting agency must note the Sealing in any and all related case(s).
  • **keep in mind, if you commit another crime, the government can unseal the conviction and use it against you.**

Reporting Exceptions:

• Fingerprint Clearance
• Convictions under Chapter 34 (drug related offenses)
• Burglary convictions, if you are applying for entry into a residential structure
• Child abuse convictions for employment involving care to minors
• Vulnerable Adult convictions for employment involving care to vulnerable adults
• Defense of a civil lawsuit against you
• And some others as outlined under the Statute

Conviction Exceptions:

• Offenses designated “Dangerous,” pursuant to A.R.S. 13-704
• Dangerous Crimes Against Children (DCAC), pursuant to A.R.S. 13-705
• Violent or Aggravated offenses, pursuant to A.R.S. 13-706
• Offenses involving the discharge/use/threatening display of a deadly weapon, if the elements of the offense(s) require one or more of these
• Knowingly inflicting Seriously Physical Injury (the language in your plea/guilty verdict matter very much here)
• Offenses involving Sex Trafficking
• Sex offenses involving children, including Sexual Exploitation of a Minor

7) Certificate of Second Chance

Pursuant to A.R.S. 13-905, you are eligible for a Certificate of Second Chance one time.

Eligibility:

• Similarly to all other post-conviction benefits, you must have completed all terms and conditions of your sentence, including absolute discharge from the Department of Corrections (DOC). Also, there are specific timelines to be followed depending on the crime’s class:
  • Felonies
    • Class 2 or 3 – 5 years after all terms and conditions of are completed.
    • Class 4/5/6 – 2 years after all terms and conditions of are completed.
  • Misdemeanors
    • Immediately upon completion of all terms and conditions of your sentence.
      • BUT… Strategically, you may not want to use your Certificate of Second Chance on a misdemeanor. Remember, you only get one Certificate of Second Chance.

8) What about Federal convictions, can those be Set Aside?

Federal Courts also set aside convictions. Between Arizona and the Federal Courts, the process is arguably similar. However, for a felony conviction, when it comes to restoring gun rights, Federal Law requires the Bureau of Alcohol, Tobacco, and Firearms (BATF) determine two issues:

1. verify you are not “a danger to public safety;” and
2. granting your request is “not contrary to public interest.”

Keep in mind one very important fact: BATF has not allocated the funds to make these determinations in quite some time. For the foreseeable future, it appears the Federal Government does not intend to fund the BATF division responsible for gun rights restoration.

All is not lost. An alternative option is available. You can apply for a Presidential Pardon from the President of the United States of America. If successful, your conviction will be Pardoned.  Said another way, your conviction is “expunged.” Thus, your rights are restored, and your conviction is wiped clean from your record.  You should be very aware, applying for a Presidential Pardon is not a simple process by any means, and there are no time limits for the President to grant or deny your application.

Here is an in-depth look at the major gun-control acts in America as well as breaking down how background checks actually work.

* Please keep in mind, this is general information not intended to apply to a particular person or their case(s). Also, caveats exist within many of these statutes that may apply to a particular person or their case(s). This information is intended to provide general statutory language.

** This article does not create an “attorney-client relationship” and should not be relied upon for your case. Dworman Law recommends strategizing with a lawyer to discuss your case to determine your best interests.

• Howard F. Dworman, Esq.