by Attorney Howard F. Dworman
Motion to Set Aside conviction? Isn’t this just an “Expungement?”
To answer this question we need to peel back a few layers.
1) Type of Conviction:
In Arizona, a person can be convicted of a Misdemeanor or a Felony (or a combination of the two). A misdemeanor is a crime punishable by no-more-than one year in jail, no-more-than three years on probation, and no-more-than $2,500.00 in fines and fees. An exception exists for misdemeanor DUI and Domestic Violence offenses; probation increases to no-more-than five years and fines are increased based on statute(s) and applicable municipal codes. Misdemeanors are handled in City/Municipal Courts or County Justice Courts.
Felonies are much more severe. Under State law the maximum fine is $150,000.00 (plus an 83% surcharge) and probation can be up-to lifetime depending on the conviction. Generally, probation does not exceed seven years. Of course, depending on the crime, the court could order other statutory fines and penalties. Also, prison is available for all felonies. Some felonies require mandatory prison terms.
2) Why does this matter to you?
Well, if the conviction and punishment were this simple, I would not need to continue; you wouldn’tbe reading this. However, other punitive issues need to be addressed; collateral consequences that likely brought you to read this article.
For all felonies, you lose the following civil rights:
- Hold public office
- Serve on a jury
- Obtain/maintain licensures
- Enlist in the military
- Possess a firearm
Additionally, for most felony drug convictions (under ARS §13-3401) you will lose the ability to receive financial aid for college/higher education, social security benefits, and food stamps/government assistance opportunities. Also, other collateral consequences that could result from a felony conviction: termination of parental/guardian rights and right to adopt a child; impede your ability to rent an apartment; impede your ability to find/maintain employment. Keep in mind, a felony conviction may affect other privileges one may take for granted; generally the above-mentioned losses impact a person the most.
Misdemeanor convictions, generally, do not come with severe consequences. As I mentioned, felonies are “more severe” than misdemeanors. However, if your conviction is considered a “Domestic Violence offense,” you are a “Prohibited Processor” under Federal law pursuant to 18 U.S.C. §922(g)(9) a.k.a. the Brady Handgun Prevention Act; you cannot possess a firearm.
3) Can I do anything to get these rights restored?
Yes, you almost certainly can. In Arizona, your conviction may be Set Aside depending on a few things. Arizona Senate Bill (SB 1189) provides, “every person convicted of a criminal offense [some exceptions apply]” may apply to the sentencing court and request the conviction be “Set Aside” so long as your entire sentence is satisfied; you successfully completed all court ordered terms and conditions. You must understand, the court is not compelled to grant your motion.
Specific to Domestic Violence misdemeanor convictions, once your conviction is Set Aside, you or your attorney need to notify the Federal government so you will no longer be considered a “Prohibited Possessor.” How do you notify the Feds? Log on to the NICS website, print and complete the appropriate forms, and send them in to the address provided. I know what you are thinking, “how long will it take for NICS to process the paperwork?” That is the million-dollar question. Unfortunately, NICS does not say how long they take to complete the process. Hiring an attorney to help with the NICS process may be beneficial.
4) How do I apply under SB 1189?
This is where the “may” (from #3) comes into play; the type of conviction becomes important. Pursuant to ARS §13-905, once your sentence is satisfied a person may apply to the court, “to have the judgement of guilt set aside.” (emphasis added).
The application for set aside must be submitted to the court where the person was sentenced and must be before the same judge who imposed sentence. If the sentencing judge is not available, the application will be submitted to the judge who took over the sentencing judge’s cases. The judge “shall” consider a series of factors when deciding on the person’s application: 1) Nature and circumstances of the offense; 2) the person’s compliance during their sentence; 3) prior or subsequent convictions; 4) Victim’s position (if applicable); 5) amount of time between conviction and application; 6) applicant’s age when convicted; 7) any other factor(s), a.k.a.- “catch-all.”
Remember those “exceptions” I mentioned earlier? Pursuant to ARS 13-905(K), if the conviction is designated “a href=”https://www.azleg.gov/viewdocument/?docName=https://www.azleg.gov/ars/13/00704.htm”>dangerous,” you cannot apply to set aside the judgement. Furthermore, you cannot apply to set aside the judgement if the conviction requires registration pursuant to ARS 13-3821; includes a finding of sexual motivation pursuant to ARS 13-118; is a felony offense and the victim was under 15 years old; Driving on a Suspended License pursuant to ARS 28-3473, any offense under Chapter 3 of ARS Title 28 except Reckless driving pursuant to ARS 28-693.
If your conviction is designated “serious,” you must wait ten years after you completed your sentence before your gun rights can be restored.
5) Why is this not “Expungement?”
Arizona does not offer “expungement” for adult criminal convictions. However, if a juvenile court judge adjudicated the case, your conviction may be eligible for expungement, or destruction.
Once all terms of your sentence have been successfully completed, and you satisfy the eligibility requirements (see below), you may apply for a Set Aside pursuant to ARS §8-348, and you may apply may apply to destroy the Juvenile Record, pursuant to ARS §8-349.
Eligibility requirements for Set Aside and/or Destruction are:
- you must be at least 18 years old;
- have no adult felony convictions;
- the juvenile offense could not have been:
- Forcible Sexual Assault
- Armed Robbery
- Violent offenses
- Some DUIs
- You must not be a Chronic offender
- The offense(s) cannot be designated “dangerous”
6) What about Federal convictions, can those be Set Aside?
Federal Courts Set Aside convictions. Between Arizona and the Federal Courts, the process is arguably similar. However, for a felony conviction, when it comes to restoring gun rights, Federal Law requires the Bureau of Alcohol, Tobacco and Firearms (BATF) favorably determine two issues:
- verify you are not “a danger to public safety;” and
- restoring your gun rights is “not contrary to public interest.”
It is important to understand that BATF has not allocated the funds, to make the determinations, in quite some time. For the foreseeable future, it appears the Federal Government does not intend to fund the BATF division responsible for gun right restoration.
All is not lost. An alternative option is available. You can apply for a Pardon from the President of the United States of America. If successful, your conviction will be Pardoned; effectively “expunged” for lack of a better term. Thus, not only are your rights restored but your conviction is as-if it never happened. Keep in mind, applying for a Presidential Pardon is not a simple process and there are no time limits for the President to grant or deny the application.
* Please keep in mind, this is general information not intended to apply to a particular person or their case(s). Also, caveats exist within many of these statutes that may apply to a particular person or their case(s). This information is intended to provide general statutory language.
** This article does not create an “attorney-client relationship” and should not be relied upon for your particular case. The Attorneys For Freedom recommend strategizing with a lawyer to discuss your case to determine your best interests.