ARIZONA HOUSE OF REPRESENTATIVES

HB 2312: setting aside conviction; requirements
PRIME SPONSOR: Representative Farnsworth E, LD 12 BILL STATUS: Caucus & COW                 JPS: DPA 9-0-0-0

Abstract

Relating to setting aside criminal convictions.

Provisions

1. Permits an application to be made to the court in general, instead of the specific judge who imposed the original sentence or term of probation (or the judge's successor). (Sec 1)

2. Requires a convicted person to be informed of the option to have a conviction set aside at the time of sentencing, instead of at discharge. (Sec 1)

3. Prohibits a person from applying for a set aside until two seven years after the person's absolute discharge from ADC, if the person was sentenced to ADC. (Sec 1)(JPS)

4. Prohibits the clerk from charging a filing fee for a set aside application. (Sec 1)

5. Outlines the factors that the court must consider in determining whether to set aside a conviction:

a. Nature/circumstances of the offense;

b. Compliance with probation, the sentence imposed and ADC rules/regulations;

c. Prior or subsequent convictions;

d. Victim input and the status of any restitution;

e. Length of time since the completion of the sentence;

f. Any other relevant factor. (Sec 1)

6. Permits the use of a set aside conviction in the following situations:

a. As a conviction if the conviction would be admissible had it not been set aside;

b. As an alleged element of an offense;

c. As a prior conviction;

d. In any subsequent prosecution for any offense;

e. By ADOT in enforcing specific statutes. (Sec 1)

7. Requires the court clerk to notify ADPS if a conviction is set aside. (Sec 1)

8. Requires ADPS to update the person's criminal history with an annotation about the set aside. DPS is not allowed to redact or remove any part of the record. (Sec 1)

9. Provides that an LEA is not required to redact or remove a record or information from the record of a person whose conviction is set aside. (Sec 1)

10. States that a set aside does not affect the requirement to obtain a Fingerprint Clearance Card, if required by statute. (Sec 1)

11. Requires the court clerk to restrict public access to specific information for a person whose conviction has been set aside. (JPS)

a. Does not apply to an LEA, prosecuting agency, probation department or the defendant or if there is a court order.

b. Does not require the clerk to remove identifying information from any exhibits. (Sec 1)

12. requires the court to state its reason for denying an application in writing and on the record. (jps)

13. grants a victim the right to be present and heard at any proceeding arising from an application to set aside a conviction. notice of the application must be provided to the victim, along with a notice of rights. (jps)

14. Expands the list of disqualifying offenses for set aside to include:

a. A serious offense (A.R.S. § 13-706);

b. A violent aggravated felony (A.R.S. § 13-706);

c. An offense listed in the Organized Crime, Fraud and Terrorism Chapter (Title 13, Ch. 23)

d. An offense listed in the Sexual Exploitation of Children Chapter (Title 13, Ch. 35.1) (Sec 1)

15. Strikes two existing disqualifying offenses:

a. Any offense where the victim is a minor under 15 years of age; and (JPS)

b. Reckless driving.  (Sec 1)

16. Contains a delayed effective date of January 1, 2019. (Sec 2)

17. Makes technical, clarifying and conforming changes. (Sec 1)

Current Law

A.R.S. § 13-907 grants every person convicted of specific criminal offenses the opportunity to apply to a judge to have the person's conviction set aside, if the person has fulfilled conditions of probation or the person's sentence.   The person must be informed of this option at the time of discharge and the person, his or her attorney or probation officer can apply for the set aside. If the set aside is granted, by statute the person is released from all penalties and disabilities resulting from the conviction, except those specifically outlined in statute. Additionally, a person's right to possess a firearm is restored, unless the person was convicted of a serious defense (defined in A.R.S. § 13-706).  The statute outlines several offenses that disqualify a person from seeking a set aside, including any offense:

· Involving a dangerous offense

· That requires a person to register as a sex offender;

· Where there was a finding of sexual motivation;

· Where the victim was a minor under 15 years of age;

· Related to specific moving vehicle violations.

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Fifty-third Legislature                  HB 2312

Second Regular Session                               Version 2: Caucus & COW

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