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Arizona Expungement under ARS 13-4051 and Set Aside of Convictions under ARS 13-907

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One question that I get frequently is “expunging” a criminal conviction. Unfortunately, Arizona does not expunge criminal convictions. If someone has been convicted of a crime, the best one can do is “set aside” the conviction under A.R.S. 13-907. 13-907. Setting aside judgment of convicted person on discharge A. Except as provided in subsection D 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 judge, justice of the peace or magistrate who pronounced sentence or imposed probation or such judge, justice of the peace or magistrate's successor in office to have the judgment of guilt set aside… D. This section does not apply to a person who was convicted of a criminal offense: 1. Involving a dangerous offense. 2. For which the person is required or ordered by the court to register pursuant to section 13-3821. 3. For which there has been a finding of sexual motivation pursuant to section 13-118. 4. In which the victim is a minor under fifteen years of age. 5. 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. If the judge grants the motion to set aside, the defendant can write on any non-governmental application or form the conviction has been set aside or dismissed. The set aside provision has no benefit when applying for government jobs or permits, licenses, or applications. And even if a conviction has been set aside, it will still count as a prior conviction under sentencing laws. Arizona does, however, have an expungement statute when someone has not been convicted. That statute is ARS 13-4051 and it applies when someone has been arrested but not convicted. The benefit of this statute is that it eliminates essentially all official records of the arrest. 13-4051.  A. Any person who is wrongfully arrested, indicted or otherwise charged for any crime may petition the superior court for entry on all court records, police records and any other records of any other agency relating to such arrest or indictment a notation that the person has been cleared. B. After a hearing on the petition, if the judge believes that justice will be served by such entry, the judge shall issue the order requiring the entry that the person has been cleared on such records, with accompanying justification therefor, and shall cause a copy of such order to be delivered to all law enforcement agencies and courts. The order shall further require that all law enforcement agencies and courts shall not release copies of or provide access to such records to any person except on order of the court. There are a couple of issue with this statute. There is not much case law explaining under what circumstances the statute applies and how a court should rule. For example, the statute says specifically “any crime”, but then it requires filing a petition in “superior court.” What if a crime is a misdemeanor and not in Superior Court? Does this statute still apply? Second, does someone get an expungement just as long as the charge was dismissed, or is more required? In State v. Hesam Mohajerin, the court of appeals held: to obtain relief, a petitioner must demonstrate both that his arrest or charge was "wrongful" and that justice requires the entry of a notation of clearance, and one of the ways he may do so is by showing the allegations against him are false. In that decision, the court of appeals clarified the earlier decision in State v. Franco, in which the court had required the defendant to prove a "wrongful conviction" to get the record expunged under ARS 13-4051. As things seem to stand now, proving the allegations were false is sufficient, but not necessary to get relief under ARS 13-4051.

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