PREFILED JAN 10 2020
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REFERENCE TITLE: marijuana possession; expungement; records; erasure |
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State of Arizona House of Representatives Fifty-fourth Legislature Second Regular Session 2020
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HB 2178 |
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Introduced by Representatives Blanc: Engel, Rodriguez
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AN ACT
amending title 13, chapter 9, Arizona Revised Statutes, by adding section 13‑911; amending section 41-1733, Arizona Revised Statutes; relating to crime records.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 13, chapter 9, Arizona Revised Statutes, is amended by adding section 13-911, to read:
13-911. Marijuana possession; automatic expungement and records erasure; petition to expunge; expungement order; requirements; definition
A. The court shall expunge the record of a person's arrest, conviction and sentence for possessing marijuana in violation of section 13‑3405, subsection A, paragraph 1. A person whose record is expunged shall be treated in all respects as if the person was never arrested, convicted or sentenced.
B. Within one year after the effective date of this section, all law enforcement agencies in this state and the clerk of the court in each county shall identify and destroy all records in the entity's possession or control that are related to a person's arrest, conviction and sentence for possessing marijuana in violation of section 13‑3405, subsection A, paragraph 1.
C. If a person is arrested for, charged with or indicted for a violation of section 13‑3405, subsection A, paragraph 1 and the court or a prosecutor dismisses or vacates the complaint, information or indictment, the person is found not guilty or a criminal charge is not filed against the person in the Superior Court or a municipal court or justice court within fourteen days after the arrest or court disposition, all law enforcement, grand jury, prosecuting agency and court records that pertain to the arrest or charge shall be erased. The clerk of the court or the person who is charged with the retention and control of the records may not disclose to anyone the existence of the records or any information that pertains to any charge that was erased. This subsection does not prohibit an arrested, charged or indicted person or the person's heirs from filing a petition with the court or the clerk of the court to erase the records and, if granted, the records shall be erased.
D. The clerk of the court, any person who is charged with retaining and controlling the records or any law enforcement agency that has information contained in the erased records may not disclose to anyone, except the subject of the record on submission of satisfactory proof of the subject's identity, information that pertains to any charge that is erased under this section. The clerk of the court or a person who is charged with retaining and controlling the records shall forward a notice of the erasure to any law enforcement agency that the clerk or person knows received disseminated information concerning the arrest and the law enforcement agency shall erase the disseminated information from the records. the clerk of the court or a person who is charged with retaining and controlling the records shall provide adequate security measures to safeguard against unauthorized access to or dissemination of the records or, on the request of the accused, cause the actual physical destruction of the records, except that the clerk of the court or person may not cause the actual physical destruction of the records until three years after the date of the final disposition of the criminal case to which the records pertain. A person who has a record erased may state that the person has never been arrested within the meaning of the law with respect to the proceedings that are erased and may swear so under oath.
E. Beginning one year AFTER THE effective date of this section, if a person's arrest, conviction or sentence is not expunged and erased pursuant to subsections A, B, C and D of this section for possessing marijuana pursuant to section 13‑3405, subsection A, paragraph 1, the person may petition the court that pronounced sentence to expunge the person's record of arrest, conviction and sentence or, If the person was Indicted but the charges were dismissed, the person was found not guilty or the conviction was vacated, may petition the court of proper jurisdiction in the city, town or county that filed the charges against the person or where the arrest occurred to expunge the person's arrest record or court record, or both.
F. The court shall grant a petition for expungement without a hearing. The court may dismiss a petition that does not meet the requirements prescribed in this section only after a hearing. The court shall provide a copy of the petition for expungement to the prosecutor and allow the prosecutor to respond to the petition and request a hearing.
G. After the court grants a petition for expungement or after an automatic expungement under subsection A of this section:
1. The court shall issue an order or minute entry to the petitioner that states that the expungement order expunges any record of the petitioner's arrest, conviction and sentence and that the clerk of the court will notify the department of public safety, the prosecutor and the arresting law enforcement agency, if applicable, of the expungement order.
2. On order of a court, the clerk of the court shall seal all records relating to the expunged arrest, conviction and sentence and allow the records to be accessed only by the person whose record was expunged, the person's attorney or a peace officer for a lawful purpose.
3. The department of public safety shall seal and separate the expunged record from the department's records and inform all appropriate state and federal law enforcement agencies of the expungement. The department may not charge the successful petitioner a fee to research and correct the petitioner's criminal history record.
4. The arresting and prosecuting agencies shall clearly identify in each agency's files and electronic records that the petitioner's arrest or conviction and sentence is expunged.
5. a person whose conviction is vacated pursuant to this section may state, in all instances, that the person has never been arrested for, charged with or convicted of the crime that is the subject of the conviction, including in response to questions on employment, housing, financial aid or loan applications.
H. A conviction for an offense that is committed in another jurisdiction and that if committed in this state would not constitute an offense in this state may not be used against the petitioner or prohibit the petitioner from obtaining an expungement.
I. this section does not affect The right Of the person whose record is expunged to appeal from the conviction or sentence or to rely on it in bar of any subsequent proceeding for the same offense.
J. This section does not apply to any law enforcement, prosecuting agency or court record that pertains to an information or indictment that contains more than one count while the case is pending or, if the case is disposed of, only when all counts are entitled to erasure pursuant to this section.
K. For the purposes of this section, "record" includes every photograph of the person and all palm prints and fingerprints taken or made of the person. Record does not include a court record or transcript of the proceedings that is made or prepared by an official court reporter, assistant court reporter or monitor.
Sec. 2. Section 41-1733, Arizona Revised Statutes, is amended to read:
41-1733. Public safety interoperability fund
A. The public safety interoperability fund is established consisting of monies appropriated to the fund by the legislature. The department shall administer the fund. The fund is subject to legislative appropriation.
B. Monies in the fund may be used only for:
1. Interoperable communication systems.
2. Costs associated with this state's or a court's or law enforcement agency's compliance with expunging and erasing records pursuant to section 13‑911.
Sec. 3. Applicability
This act applies to a person who is arrested, convicted or sentenced before, on or after the effective date of this act.