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Setting Aside a Charge in Arizona

Thursday / March 12, 2015

Although Arizona does not have an Expungment statute, you may be eligible to have an offense set aside. To set aside an offense means to cancel or revoke a judgment or order, so the original is modified, but it is not destroyed; the original may still be available for use. Newman v. Show Low Police Dept., 2013 WL 1225658, (D. Ariz. 2014). Success after a felony conviction is difficult, so a set aside is a helpful tool for people that are attempting to re-enter the community after a prison sentence; trying to apply for employment after a felony conviction, and other various situations.

 

The main statute for a set aside in Arizona can be found under A.R.S. § 13-907. A set aside for a felony conviction has the effect of releasing the defendant from all penalties and disabilities resulting from the conviction, with some exceptions. Although there is still a prior felony conviction listed, the record also reflects that the person successfully completed all court requirements and the court vacated the judgment and dismissed the charges. State v. Barr, 217 Ariz. 445, 449 (Ariz. Ct. App. 2008). A set aside for a misdemeanor charge is also beneficial, but misdemeanors do not impose the same restrictions on constitutional rights as felony convictions do.

 

So who is eligible for a set aside? If a person was convicted of a felony in an Arizona Superior Court and has an absolute discharge from probation or prison, that person may be able to set aside the felony conviction. Moreover, a person that was convicted of a misdemeanor in a Justice or City Court and has successfully completed all court orders may be eligible for a set aside.

 

But, a set aside is not available to a person convicted of a criminal offense:

  1. Involving a dangerous offense.
  2. For which the person is required or ordered by the court to register pursuant to § 13-3821.
  3. For which there has been a finding of sexual motivation pursuant to § 13-118.
  4. In which the victim is a minor under fifteen years of age.
  5. In violation of § 28-3473, any local ordinance relating to stopping, standing or operation of a vehicle or title 28, chapter 3, except a violation of § 28-693 or any local ordinance relating to the same subject matter as § 28-693.

 

When delving further into the statute, § 13-905(C) and § 13-906(C) are specific provisions for the restoration of the right to carry fire arms, whereas § 13-907(C) concerns the restoration of rights in a more general way. If § 13-905(C) and § 13-906(C) contradict § 13-907 (C), the two former sections rule. Section 13-907(C) merely “releases a person from all penalties and disabilities resulting from the conviction” and it is a “special benefit conferred by statute,” which means it is subject to legislative control and limitations. State v. Key, 128 Ariz. 419, 421 (Ariz. Ct. App. 1981). So, § 13-907(C) is not intended to eliminate all consequences of a person’s criminal conviction under Arizona law.

 

If you or anyone you know has been charged with a crime or would like to know more about a set aside in Arizona, immediately seek an attorney’s help to ensure the accused’s rights are protected. To schedule a no obligation consultation with my office, visit my website at: www.criminaldefenseattorneykg.com or by calling me at 480-331-7568.

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