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Expungement of Criminal Record in Arizona? ...Not so much.

We are often asked whether we handle "expungements" of criminal records.

Well the fact is that there is no such thing as "expungement" in Arizona, or anywhere else for that matter – at least in the sense that the question is asked by people convicted of crimes.

When someone is convicted of a felony or misdemeanor they have, quite literally, a criminal "record." When people use the term "record" though, they usually think of the "record" as some document out there consisting of a list of all their misdeeds. Unfortunately, no such palpable "record" exists. Instead, the existence of a criminal record is merely the affirmation that, somewhere out there, a public record exists which shows the person has been convicted of a crime. The common usage of "expungement" does not represent an idea that somehow the "record" is destroyed and no longer exists (which would be impossible in this digital age anyway….ask anyone who mistakenly posts something embarrassing on Twitter). Instead, "expungement" means that an additional "record" is created that dictates, as a legal matter, that the original record has limited or no legal effect. Understood in that proper sense, there is "expungement" in Arizona in the form of "setting aside" the judgment of guilt and the restoration of civil rights.

The "setting aside" of judgments and the "restoration" of rights are set forth in A.R.S. § 13-905 through 13-912.01. Here are some key points relating to the Arizona rules:

1. A rights restoration happens automatically when first time offenders complete probation or prison and pay restitution. EXCEPT, the rights restoration does not include the right to possess firearms – that right must be specifically requested by Petition to the court.

2. An offense cannot be "set aside" where it involved the infliction of serious physical injury, involved the use of a deadly weapon or dangerous instrument, was a sex –related crime or a crime with sexual motivation, or where the victim was a minor under 15 years of age.

3. Likewise, those convicted of dangerous offenses may not have their firearms rights restored. Those convicted of "serious offenses" may not have their firearms rights restored until 10 years have passed from the time of completion of probation.

4. The setting aside of a conviction does not preclude its use as a legal "prior conviction" in relation to the future prosecution of crimes.

5. There is no "right" to set aside apart from the limited restoration of rights for the first offense. The decision is instead within the discretion of a judge – the judge can grant or deny the request in his or her discretion.

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