Assigned to JUD FOR
COMMITTEE
Assigned to JUD FOR
COMMITTEE
ARIZONA STATE SENATE
Fifty-Third Legislature, Second Regular Session
setting aside convictions; requirements
Purpose
Modifies procedures for setting aside a judgment of guilt.
Background
Current law allows any qualified person convicted of a criminal offense to apply to the adjudicator who imposed the sentence to have his or her judgment of guilt set aside. Convicted persons are required to be informed of this right at the time of discharge. Statute outlines a number of criminal offenses that disqualify a person from eligibility for having his or her judgment set aside, including 1) dangerous offenses; 2) certain sex crimes; 3) crimes against children; and 4) certain driving violations. If the application is granted, the person is released from all penalties and disabilities resulting from the conviction, with certain exceptions (A.R.S. § 13-907).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Requires a court, when determining whether to set aside a conviction, to consider:
a) the nature and circumstances of the offense;
b) the applicant's compliance with the conditions of probation, the sentence imposed and any ADC rules or regulations, if applicable;
c) any prior or subsequent convictions;
d) the victim's input and the status of victim restitution, if any;
e) the length of time that has elapsed since the completion of the applicant's sentence;
f) the applicant's age at the time of the conviction; and
g) any other relevant factor.
2. Permits an application to set aside a judgment to be made to the court in general instead of only to the specific adjudicator who gave the judgment.
3. Requires a court that denies an application to set aside a judgment to state its reasons for the denial in writing and on the record.
4. Prohibits a court clerk from charging a filing fee for an application to have a judgment of guilt set aside.
5. Permits a conviction that is set aside to be:
a) used as a conviction if the conviction would be admissible had it not been set aside;
b) alleged as an element of an offense;
c) used as a prior conviction;
d) pleaded and provided in any subsequent prosecution of the person for any offense; and
e) used by the Department of Transportation in enforcing driver license suspension or revocation as if the judgment of guilt had not been set aside.
6. Requires a court clerk to notify the Department of Public Safety (DPS) if a conviction is set aside.
7. Requires DPS to update the person's criminal history with an annotation that the conviction has been set aside.
8. Prohibits DPS from redacting or removing any part of a person's record in relation to a judgment that has been set aside.
9. Stipulates that a law enforcement agency is not required to redact or remove a record or information from the record of a person whose conviction is set aside.
10. Stipulates that DPS and the Board of Fingerprinting are not precluded from considering a conviction that has been set aside when evaluating an application for a fingerprint clearance card.
11. States that a victim has the right to be present and be heard at any proceeding in which the defendant has filed an application to have a judgment of guilt set aside.
12. Requires the attorney for the state to provide the victim with notice of the defendant's application and the victim's rights, if the victim has made a request for postconviction notice.
13. Requires a defendant to be informed of his or her right to apply to have a judgment set aside at the time of sentencing, instead of at the time discharge.
14. Makes technical and conforming changes.
15. Becomes effective on the general effective date.
House Action
JPS 2/14/18 DP 9-0-0-0
3rd Read 2/22/18 56-0-4
Prepared by Senate Research
March 6, 2018
JA/VR/lat