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A criminal conviction can have life-altering consequences long after you have completed your sentence with the court. A conviction on your record can impact employment, professional licenses, education, housing, and exercising your basic civil rights like voting or owning a gun.
Arizona’s laws regarding clearing your record are unique and complex. And they are becoming even more complicated in January 2023 with a new law going into effect.
Because of the complexities associated with these new laws, you are strongly advised to talk to a defense attorney from Colburn Hintze Maletta. When your record is on the line, you need a team with decades of experience handling criminal defense cases.
Until 2021, Arizona lacked a formal system for expunging or sealing criminal records; the only available option was a Set Aside, which removes some penalties but leaves the conviction visible. However, in 2020, Prop. 207 was passed, allowing for expungement of certain low-level marijuana convictions. A new law effective in January 2023 will permit sealing of various types of criminal records, hidden from public view but still accessible to certain agencies. This can apply to both convictions and dismissed charges, subject to certain conditions and waiting periods defined under ARS 13-911. While Set Asides are governed by ARS 13-905 and can be applied for after completing all sentence obligations, they have their limitations and exceptions, such as not applying to certain serious or sexual offenses. Moreover, a Certificate of Second Chance can be granted in many cases where a Set Aside is approved, easing the path to obtaining occupational licenses.
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Cleaning Up Your Arizona Criminal Record
Arizona’s Complicated Legal Scheme: Set Aside, Expungement, and Seal a Record
Up until 2021, Arizona did not have a mechanism to expunge or seal any criminal conviction. The only option under Arizona law was to seek a Set Aside. If a motion to set aside is granted, “the court shall set aside the judgment of guilt, dismiss the complaint, information or indictment and order that the person is released from all penalties and disabilities resulting from the conviction” except for any penalty imposed by the Department of Motor Vehicles or the Game and Fish Department.
A conviction that has been Set Aside can still be used as a prior conviction to enhance a subsequent sentence.
In 2020, voters passed Arizona Prop. 207, which legalized certain adult recreational use of marijuana. Under Prop. 207, certain prior marijuana convictions could be expunged. The expungement process applies only to certain low-level marijuana convictions pre-dating November 30, 2020. Expunged records are no longer accessible to the public, courts, or law enforcement for any reason.
Beginning in January 2023, a new Arizona law will allow eligible convictions and criminal records to be sealed. Sealed records will be hidden from public view but still accessible to criminal justice agencies and certain employers for sensitive positions.
Sealing a record under this new law can apply to a conviction and a record of a charge or arrest that was later dismissed without a conviction. Below, we will discuss each of these in more detail.
How to Get a Criminal Record Set Aside
Under ARS 13-905, once you have fulfilled all the obligations of your sentence or probation and you have been discharged by the Court, you can apply to have your conviction set aside.
You can apply to set aside any conviction, misdemeanor or felony, except for the following:
- A dangerous offense.
- An offense that requires or for which the Court ordered sex offender registration.
- An offense for which there has been a finding of sexual motivation.
- A felony offense in which the victim is a minor under fifteen years of age.
The Court considers several factors when deciding whether to grant a Set Aside, including:
- The nature and circumstances of the offense that the conviction is based on.
- The applicant’s compliance with the conditions of probation, the sentence imposed, and any state department of corrections’ rules or regulations, if applicable.
- Any prior or subsequent convictions.
- The victim’s input and the status of victim restitution, if any.
- The length of time that has elapsed since the completion of the applicant’s sentence.
- The applicant’s age at the time of the conviction.
- Any other factor that is relevant to the application.
If a motion to set aside is granted, “the court shall set aside the judgment of guilt, dismiss the complaint, information or indictment and order that the person is released from all penalties and disabilities resulting from the conviction” except for any penalty imposed by the Department of Motor Vehicles or the Game and Fish Department.
It’s important to know that even if your conviction has been Set Aside, it is not “erased” or “sealed.” That conviction is still visible to law enforcement, the courts, employers, and anyone else looking at your criminal history.
Once a conviction has been Set Aside, the Arizona Department of Public Safety, the agency that “holds” all the criminal records for the State of Arizona, will note on your official criminal history that you had a conviction and that conviction was later set aside.
It’s also important to note that you can only ask the Court to Set Aside a conviction. If you were charged, but that charge was later dismissed, or you were acquitted at trial, or if you were arrested but never charged, the Set Aside law does not apply at all.
What is a Certificate of Second Chance?
Under an amendment to the Set Aside law that became effective January 1, 2022, in many instances, if the Court grants your Motion to Set Aside, it can also issue a Certificate of Second Chance, which “releases the person from all barriers and disabilities in obtaining an occupational license issued under Title 32 that resulted from the conviction if the person is otherwise qualified.”
In other words, a Certificate of Second Chance can make it possible to obtain a professional or occupational license.
A Certificate of Second Chance will be granted if you haven’t previously been granted a Certificate of Second Chance, you’re having a misdemeanor set aside, you’re having a class 4, 5, or 6 felony set aside, and at least 2 years have passed since you completed your sentence, or you’re having a class 2 or 3 felony set aside and at least 5 years have passed since you completed your sentence.
Expungement of Marijuana Convictions – ARS 36-2862
As of July 12, 2021, pursuant to Prop 207, you can have certain marijuana offenses expunged. Under ARS 36-2862, you can petition the Court to expunge any marijuana conviction involving:
- The possessing, consuming, or transporting of 2.5 ounces or less of marijuana, of which less than 12.5 grams is marijuana concentrate.
- The possessing, transporting, cultivating, or processing of no more than six marijuana plants at the individual’s residence for personal use.
- The possessing, using or transporting of paraphernalia related to the cultivation, processing, manufacture, or consumption of marijuana.
Expungement under ARS 36-2862 includes arrests, convictions, and other marks on the person’s record connected to the enumerated marijuana crimes.
This new law provides a true expungement, meaning the record will be erased and only visible to law enforcement officers and the courts in specific situations.
Expungement under ARS 36-2862 does not apply to arrests or convictions relating to the sale or distribution of marijuana.
Arizona’s New Record-Sealing Law – How to Seal Your Record
On July 9, 2021, the Arizona Legislature passed Senate Bill 1294. Another new expungement law in Arizona, Senate Bill 1294, was passed on July 9, 2021. This bill created Arizona’s first-ever record-sealing law.
Under the newly created ARS 13-911, an individual can file a petition to have his or her case records related to a criminal offense sealed if they meet certain conditions.
This new law, which goes into effect on January 1, 2023, provides a pathway to have your criminal record (not just convictions but also arrests and charges that resulted in dismissals) completely sealed and erased entirely from public view.
You can petition the Court to seal your record under ARS 13-911 if:
- You were convicted of a crime and completed all the terms and conditions of the court-imposed sentence.
- You were charged with a criminal offense, but the charge was then dismissed, or it resulted in a not-guilty verdict at trial.
- You were arrested for a criminal offense, but no charges were ever filed.
There are statutorily imposed waiting periods that you must adhere to before asking the Court to seal your record. These include:
- Ten years for a Class 2 or Class 3 felony.
- Five years for a Class 4, 5, or 6 felonies.
- Three years for a Class 1 misdemeanor.
- Two years for all other misdemeanors.
If an individual has a prior felony conviction on their record, an additional five years is added to the existing waiting period. If they have two or more convictions, then they cannot request the record to be sealed until the required time period has passed for each conviction.
There are several exceptions to this new record-sealing law. Not all offenses qualify to be sealed under A.R.S. §13-911, in particular:
- Class 1 felonies
- Serious violent crimes
- Certain sexual offenses
- Offenses involving the discharge, use, or threatening exhibition of a deadly weapon or dangerous instrument
- Knowingly inflicting serious bodily injury on another person.
You Need an Experienced Attorney to Help Clear Up Your Criminal Record
Arizona’s laws regarding setting aside, expungement, and sealing records are complex. You need an experienced attorney to help you navigate the best path forward to clearing your record and reclaiming your life.
That is why the defense attorneys at Colburn Hintze Maletta are here to aggressively fight for your rights.
Having your record sealed, set aside, or expunged can open up an endless amount of other opportunities that might not have happened due to an unfortunate criminal conviction.
Call us day or night to set up a free consultation so we can discuss your options and come up with the best strategy to secure your future. Call (602) 825-2500 now.
David Maletta is a widely respected criminal defense attorney with over 23 years of experience and has worked on over 1,000 cases and has successfully won over 100 jury trials. David graduated from Northern Arizona University, Magna Cum Laude in 1993 with a degree in Psychology. Shortly thereafter, he earned his Juris Doctor degree from Seton Hall University School of Law in 1998. He has extensive experience in criminal and DUI matters, homicide, sexually-based offenses, domestic violence, white-collar crimes, and various misdemeanor crimes.
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Real Client Reviews
Below are just a few of what our clients have to say!
“David was relentless in his pursuit of my son’s innocence”
We retained David Maletta to represent our son after being cited for what can only be described as a momentary lapse of reason. David was extremely knowledgeable, was able to clearly communicate very complicated concepts, and was relentless in his pursuit of my son’s innocence. He had strong relationships with the prosecuting attorney and respect of the judge, which ultimately resulted in my son learning a really hard lesson with limited consequences (traffic school and writing an essay to the judge on the physics of driving 130MPH and what happens if that goes badly). I have already sent all of my friends with teenage and 20 year old kids his contact information for when they inevitably get that call. David completely exceeded all of our expectations and we could not recommend him any stronger. Thank you for everything.
Shawn H. - Google Review
“I was found NOT GUILTY. Dave won the trial for me.”
Dave stayed with me while he pushed back and forth with Covid-19 and the delays with court. Once cited, the state basically decides that you’re guilty through the automatic suspension of your drivers license. Dave immediately took care of that problem and I never lost the privilege of driving. Dave took notes like crazy and was upfront about our uphill battle. I was also well aware that the plea deal that was given to us, was unacceptable and through Dave’s knowledge and experience I had put my trust in him to guide me to make the right decision on how to proceed. With Dave’s guidance I had decided that we needed to fight for something better than what the prosecutor was offering and Dave was 100 percent behind me on that decision. We knew the risks, be we also knew we had very little to lose based on the prosecutions stance. We decided to go to trial… Watching the prosecution and then watching Dave was night and day!! It was clear to the jury that the prosecution didn’t have their facts straight and were not addressing the facts that they could not address…There was a lot at stake for my personal life and my work life. I was found NOT GUILTY. Dave won the trial for me.
Gregory - AVVO Review
“I would give them more stars, but the option is not there”
Best divorce lawyers in Arizona, hands down. Timothy Hintz handled my divorce, and as a father, I have my son and our house. I would give them more stars, but the option is not there. His paralegal Jennifer Bone is extremely competent, and the whole team is very friendly. Took a big weight off, having them behind me.
Joseph A. - Google Review
“There is NOBODY I would rather have defending me than David”
I hired David Maletta and it was the best decision of my life. His knowledge, genuine interest, overall attitude, and ability to connect with people is incomparable. I could talk about all of this at length. I COULD do all of that, but that wouldn’t do David justice. He first and foremost demonstrates his interest and genuine care for his client. Being in uncharted territory with a criminal charge and nowhere to turn, David’s presence and personality put all nerves at ease. I went through a jury trial with David beside me. The trial ran for 3 days and I spent a significant amount of time with David one-on-one. During this stressful time, he wanted to hear my input and thoughts on everything. David was incredible from the first day I met him. Not only is he a great attorney, but he is also a great person who cares about people and finding justice for his clients. He connects to the human side of people. I can’t put into words how much David cares about the individual in a case. When it comes to the courtroom, there is NOBODY I would rather have defending me than David.
Jacob - AVVO Review
“I still have a clean record to this day.”
One piece of advice for people who are charged with anything in Arizona is to hire a great lawyer because the state does not care if you’re innocent or not. The Arizona legal system will try to ruin your life. A couple of years ago I was the victim of an antisemitic hate crime when a guy named Billy, who had a history of drug and alcohol issues and was thrown out of the Navy for being violent, decided to attack me after drinking all day in Old Town (Sunday funday) over a pointless argument over whether it’s better to buy homes immediately post-recession or during the 10th year of a bull market run which was his argument. The disagreement led to Billy making several anti-semitic comments and assaulting me, which led to me beating up billy. Billy and his friends then went to the police and lied to try to get me thrown in jail for months for assault while getting 10s of thousands of dollars in restitution in the process. I hired David Maletta. We went to court and destroyed Billy and his best friend/roommate Taylor who were trying to extort me and ruin my life. In Arizona there is a 3.5% chance you’ll get all charges dropped because of how hard the state is on crime but we pulled it off and I still have a clean record to this day.
MJ Walsh - Google Review
“Tim was absolutely amazing and worked diligently”
I had an incident and was given the catch-all charge. There wasn’t really anything I could do by myself to get out of it. Tim was absolutely amazing and worked diligently to ensure that I would have the best possible outcome from my case. Which he successfully achieved! As of right now, I am on the path to having my case fully dismissed. A couple of things that really helped me through this process was that Tim did an amazing job at answering my questions. He was available almost anytime and would respond promptly when he got my emails. He was also very approachable and comforting to be around while we had in person meetings and especially when I was at the court house. I would trust him and the company he works for with any other cases in the future, and as of right now, they will be my first choice if I need a lawyer in the future.
Dylan - AVVO Review
“He fights for his clients like no one I have ever seen”
David Maletta is the absolute best trial attorney in the state of Arizona. He is a kind, emphatic, and extremely patient person. As an attorney, he is prepared, aggressive, and extremely skilled. He is not afraid to go to trial and fight for his clients, like other attorneys that just plead their clients to the original charges. When he is in trial, he flips a switch and goes from a nice guy to a killing machine. He fights for his clients like no one I have ever seen. Watching him do a cross-examination is exhilarating because he is so good it’s scary.
Patricia Bevins - Google Review
“Because of Darin I got my daughter back”
Before I hired Darin I went through a total of 3 different attorneys in two different states fighting a jurisdiction battle, when my daughter was taken to a different state. It was a very difficult decision to switch attorneys at one of the most difficult, time sensitive and important times in my case, but I’m very glad I did. Upon receiving my file from previous attorneys Darin came very familiar with my case quickly. Like other people have explained he took the time to lay everything out and explain how the process was going to proceed and what to expect and continued to do this as new issues arrived. He is also very quick at responding to emails and phone calls. My case was getting close to trial as told by my previous attorneys, I did not want to go to trial as I know this is very costly (most attorneys will convince you that you need to.) Darin knew my situation, fought for what was right and got the results I wanted while avoiding a costly trial. He is extremely knowledgeable in the Child Support Guidelines as well. Because of Darin I got my daughter back. I would highly recommend him and would hire again for any future issues. Thanks Darin!
Chris - AVVO Review
“The calm in the middle of my storm…”
I recently consulted with Darin after my wife filed for divorce. He was referred to me by a friend whom I very much trust. Darin was the antithesis of the first two attorneys I consulted (who were matter-of-fact and had very little empathy about the fact that I was struggling emotionally with what was transpiring). From the first few minutes of speaking with Darin, it was obvious that he was very knowledgeable and skilled with divorce and family matters. While that was most important to me, the thing that made the difference was his calming, logical, and empathetic approach. He took the time to listen and empathize with me. He took the time to understand what I wanted to achieve through this process and laid out my options. After the consultation, I knew he would be my attorney if I had to pull the trigger. I, ultimately, didn’t have to engage Darin’s services due to a reconciliation with my wife. I hope I never have to go through that process again. However, if I do, I know beyond a shadow of a doubt who I will be hiring to represent me…Darin R. Colburn. Darin, thank you for caring and being more than an attorney.
Frank - AVVO Review
“Nothing but good things to say about my experience.”
I have nothing but good things to say about my experience working with David Maletta. I was in a very high-stress situation facing a pending DUI charge. He doesn’t know this, but I actually interviewed 5 potential lawyers, and he was the most optimistic of all of them. He took over and handled everything, and now I don’t have to live with a DUI. Thank you so much for everything! Highly recommend them to anyone looking for legal help.
Lauren Koontz - Google Review
“Listens to every request that you make on a case”
I honestly just want to let it be known to any and everyone looking for an attorney on a case. Whether it be DUI, possession, or your every day to day traffic violations where you need representation attorney Tim Hintze is your man. You have to respect a man that listens to every request that you make on a case and he gets in there and gets it done. Tim has my respect as an attorney and being a well-rounded representer. From him being honest on the possibility and options for your case to him being easy to work and communicate with via over the phone or face to face Mr. Hintze is working it out.
Ben - AVVO Review
“Responsive, sympathetic, professional, patient, and kind.”
On one of the worst and most surreal nights of my life (do not EVER get a DUI people!) I was lucky enough to find my way to Tim Hintze. Being in Phoenix for the Thanksgiving holiday from out of town, and after spending the evening with family, I ended up spending the night in jail.
Tim turned one of the worst experiences in my life into “it could have been so much worse!” Working with him from a different state, he covered the bases & paperwork, showed up for me in court, gave me numerous connections to muck my way through the system, and held my hand the whole way.
I cannot imagine how much worse this experience could have been, and thanks to Tim, I didn’t need to. He was responsive, sympathetic, professional, patient, and kind throughout the long process, drawn out by many months due to Covid.
Keep Tim’s number handy and in your contacts in the event you are ever in the sorry position to need a DUI lawyer!