ARIZONA HOUSE OF REPRESENTATIVES

Fifty-fourth Legislature

Second Regular Session

House: JUD DPA 9-0-0-1-0

HB 2402: criminal conviction; set aside; applicability

Sponsor: Representative Roberts, LD 11

House Engrossed

Overview

Outlines the qualifications for applying and receiving a certificate of second chance.

History

Currently, 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 court to have the judgment of guilt set aside. The convicted person must be informed of this right to apply to have a conviction set aside at the time of sentencing. The court must consider the following factors when determining whether to set aside the conviction:

1) The nature and circumstances of the offense the conviction is based on;

2) The applicant's compliance with the conditions of probation, the sentence imposed and any state department of corrections' rules or regulations, if applicable;

3) Any prior or subsequent convictions;

4) The victim's input and the status of victim restitution, if any;

5) The length of time that has elapsed since the completion of the applicant's sentence;

6) The applicant's age at the time of the conviction; and

7) Any other factor that is relevant to the application. (A.R.S. § 13-905)

Provisions

1. Enables the court to issue an order that includes a certificate of second chance to a person whose judgment of guilt is set aside. (Sec. 1)

2. Ensures the clerk of the court will notify the Department of Public Safety (DPS) if a certificate of second chance has been issued. (Sec. 1)

3. Mandates the court hold a hearing if the state or victim objects to an application for a judgment of guilt set aside; the objection must be filed within thirty days after the application is filed with the court. (Sec. 1)

4. States if the court grants the application to set aside the judgment of guilt, the court's order must include a certificate of second chance if the following apply:

a) The person has not previously received a certificate of second chance;

b) The person was convicted of a misdemeanor;

c) If the person was convicted of a class 4, 5 or 6 felony and at least two years have passed since the person finished the conditions of probation or sentence; and

d) If the person was convicted of a class 2 or 3 felony and at least five years have passed since the person has finished the conditions of probation or sentence. (Sec. 1)

5. States the following apply if the court grants an application to set aside a judgment of guilt and issues a certificate of second chance:

a) Unless excluded, releases the person from all barriers and disabilities in obtaining an occupational license that resulted from the conviction, if the person is otherwise qualified;

b) Releases an employer from liability for negligently hiring or independently contracting for services from the person if the theory of the employer's liability is premised on the existence of the persons prior criminal offense;

c) Releases a person or entity from liability for providing housing to the person if the theory of the persons or entity liability is premised on the existence of the persons prior criminal offense; and

d) Is not a recommendation or sponsorship for a promotion of the person who possesses the certificate of second chance when applying for an occupational license, employment or housing. (Sec. 1)

6. Specifies if the court does not issue an order including a certificate of second chance when the person's conviction is set aside, the person may apply to the court for the certificate after meeting the requirements listed above. (Sec. 1)

7. Asserts that if a victim has made a request for postconviction notice, the attorney for the state must provide the victim with notice of the person's application for a certificate of second chance and the victim's rights. (Sec. 1)

8. Provides an employer and a person or entity that gives housing to a person who received a certificate of second chance with the following protections:

a) An employer is not liable for hiring an employee or contracting with an independent contractor who has previously been convicted of a criminal offense; and

b) If a negligent firing action is filed against an employer for the acts of an employee or independent contractor, the fact that the employee or independent contractor was previously convicted of a criminal offense may not be introduced into evidence. (Sec. 1)

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f) HB 2402

g) Initials LC/SF Page 0 House Engrossed

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