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ARIZONA STATE SENATE
Fifty-Sixth Legislature, First Regular Session
misdemeanor expungement; requirements; procedure
Purpose
Beginning January 1, 2024, allows a person convicted of a misdemeanor to petition the court for an expungement three years after the date of fulfilling the conditions of probation or sentence and if the person meets all other prescribed criteria.
Background
Every person convicted of a criminal offense, except as outlined for persons convicted of a dangerous or sexual 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 at the time of sentencing. The court may issue an order that includes a certificate of second chance to a person whose judgment of guilt is set aside. The court must consider specified conditions when deciding whether to set aside a person's conviction and, if the application is granted, the court must set aside the judgment of guilt, dismiss the complaint, information or indictment and order that the person be released from all penalties and disabilities resulting from the conviction except as prescribed. A conviction that is set aside may be: 1) used as a conviction if the conviction would be admissible had it not been set aside; 2) alleged as an element of an offense; 3) used as a prior conviction; 4) pleaded and proved in any subsequent prosecution of the person by Arizona or any political subdivision of Arizona for any offense; and 5) used by the Arizona Department of Transportation (ADOT) in enforcing motor vehicle driver license regulations. The clerk of the court must notify the Arizona Department of Public Safety (DPS) if a conviction is set aside and DPS must update the person's criminal history with an annotation that the conviction has been set aside and, if applicable, a certificate of second chance has been issued, but may not redact or remove any part of the person's record (A.R.S. § 13-905).
A person may file a petition to seal all case records related to a criminal offense if the person was: 1) convicted of a criminal offense and has completed all of the terms and conditions of the sentence that was imposed by the court, including the payment of all monetary obligations and restitution to all victims; 2) charged with a criminal offense and the charge was subsequently dismissed or resulted in a not guilty verdict at a trial; or 3) arrested for a criminal offense and no charges were filed. At the time of sentencing, the court must inform the person on the record that the person may be eligible to petition the court for an order that seals all case records of the person's arrest, conviction and sentence that are related to the offense and must provide this notice in writing. A person who was convicted of an offense and who has not subsequently been convicted of any other offense except a misdemeanor violation of the transportation statutes as outlined, may petition the court to seal the person's records of arrest, conviction and sentence after the person completes all of the terms and conditions of the person's sentence, including paying all fines, fees and restitution that are ordered by the court, and the following period of time has passed since the person completed the conditions of probation or sentence and was discharged by the court: 1) 10 years for a class 2 or 3 felony; 2) 5 years for a class 4, 5 or 6 felony; 3) 3 years for a class 1 misdemeanor; and 4) 2 years for a class 2 or 3 misdemeanor (A.R.S. § 13-911).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Allows, beginning January 1, 2024, a person convicted of a misdemeanor to petition the convicting court for an expungement of the record of conviction.
2. Excludes, from expungement eligibility, persons convicted of sexual offenses, domestic violence, driving under the influence and persons convicted of a felony at the same time as the misdemeanor offense.
3. Requires a petitioner to file a petition for expungement not sooner than three years after the date of fulfillment of the conditions of probation or sentence, and to serve the prosecuting attorney with the petition.
4. Requires a petition for expungement to include:
a) whether the petitioner has fulfilled the conditions of sentence or any term of probation;
b) whether the petitioner has any additional arrests or convictions; and
c) any written recommendation in support of expungement that is provided by a third party.
5. Requires the petitioner to attest to, and the court to deny a petition for expungement if the court knows the petitioner:
a) has previously obtained expungement in any jurisdiction of an offense that would be a felony in Arizona;
b) has any pending matters in any court or jurisdiction in Arizona or another state; or
c) the petitioner has not paid the full amount of restitution or any fine ordered as a result of the offense.
6. Requires the judge, after a hearing and if the judge believes that justice will be served, to:
a) order that all records of the petitioner's conviction that are in the custody of the court be sealed with the accompanying justification;
b) deliver a copy of the order to all law enforcement agencies and courts; and
c) forward a copy of the order to ADOT if appropriate.
7. Requires an order for expungement to prohibit all law enforcement agencies and courts from releasing copies of the petitioner's conviction records to any person unless ordered by the court.
8. Requires the prosecuting attorney, if the victim has made a request for postconviction notice, to provide the victim with notice of the petition for expungement and to inform the victim of the right to be heard on the petition.
9. Specifies that a person who receives an expungement may respond to any inquiry as though the conviction did not exist.
10. Becomes effective on the general effective date.
House Action
JUD 2/15/23 DPA 8-0-0-0
3rd Read 3/1/23 29-30-1
3rd Read* 3/7/23 58-2-0-0
*on reconsideration
Prepared by Senate Research
March 28, 2023
ZD/KS/sr