HB2174 - 541R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 13-907, Arizona Revised Statutes, is amended to read:

START_STATUTE13-907. Setting aside judgment of convicted person on discharge; application; release from disabilities; firearm possession; exceptions; sealing arrest and conviction records

A. Except as provided in subsection K of this section, every person convicted of a criminal 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 shall be informed of this right at the time of sentencing.

B. The person or the person's attorney or probation officer may apply to set aside the judgment. The clerk of the court may not charge a filing fee for an application to have a judgment of guilt set aside.

C. The court shall consider the following factors when determining whether to set aside the conviction:

1. The nature and circumstances of the offense that the conviction is based on.

2. The applicant's compliance with the conditions of probation, the sentence imposed and any state department of corrections' rules or regulations, if applicable.

3. Any prior or subsequent convictions.

4. The victim's input and the status of victim restitution, if any.

5. The length of time that has elapsed since the completion of the applicant's sentence.

6. The applicant's age at the time of the conviction.

7. Any other factor that is relevant to the application.

D. If the application is granted, the court shall 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 those imposed by:

1. The department of transportation pursuant to section 28‑3304, 28‑3305, 28‑3306, 28‑3307, 28‑3308, 28‑3312 or 28‑3319.

2. The game and fish commission pursuant to section 17‑314 or 17‑340.

E. 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 this state or any political subdivision of this state for any offense.

5. Used by the department of transportation in enforcing section 28‑3304, 28‑3305, 28‑3306, 28‑3307, 28‑3308, 28‑3312 or 28‑3319 as if the judgment of guilt had not been set aside.

F. The clerk of the court must notify the department of public safety if a conviction is set aside. The department of public safety must update the person's criminal history with an annotation that the conviction has been set aside but may not redact or remove any part of the person's record.

G. This section does not:

1. Require a law enforcement agency to redact or remove a record or information from the record of a person whose conviction is set aside.

2. Preclude the department of public safety or the board of fingerprinting from considering a conviction that has been set aside when evaluating an application for a fingerprint clearance card pursuant to section 41‑1758.03 or 41‑1758.07.

H. If the court denies an application to have a judgment of guilt set aside, the court shall state its reasons for the denial in writing and on the record.

I. A victim has the right to be present and be heard at any proceeding in which the defendant has filed an application to have a judgment of guilt set aside pursuant to this section. If the victim has made a request for postconviction notice, the attorney for the state shall provide the victim with notice of the defendant's application and of the rights provided to the victim in this section.

J. Notwithstanding section 13‑905 or 13‑906, if a conviction is set aside, the person's right to possess a gun or firearm is restored. This subsection does not apply to a person who was convicted of a serious offense as defined in section 13‑706.

K. This section does not apply to a person who was convicted of any of the following:

1. A dangerous offense.

2. An offense for which the person is required or ordered by the court to register pursuant to section 13‑3821.

3. An offense for which there has been a finding of sexual motivation pursuant to section 13‑118.

4. An offense in which the victim is a minor under fifteen years of age.

5. An offense in violation of section 28‑3473, any local ordinance relating to stopping, standing or operation of a vehicle or title 28, chapter 3, except a violation of section 28‑693 or any local ordinance relating to the same subject matter as section 28‑693.

L. If a judgment of guilt is set aside, the person may request that the court seal the person's arrest and conviction records. The court or a law enforcement agency may not publicly disclose arrest and conviction records that are sealed. A person whose arrest and conviction records are sealed may deny under all circumstances that the arrest and conviction occurred. END_STATUTE

Sec. 2. Heading change

The article heading of title 13, chapter 38, article 19, Arizona Revised Statutes, is changed from "ENTRY OF CLEARANCE ON RECORDS" to "CRIMINAL COURT RECORDS".

Sec. 3. Title 13, chapter 38, article 19, Arizona Revised Statutes, is amended by adding section 13-4052, to read:

START_STATUTE13-4052. Criminal case records; erasure; definition

A. If a person is arrested for, charged with or indicted for a violation of a criminal law and the court or a prosecutor dismisses or vacates the complaint, information or indictment, the time to file a notice of appeal or similar challenge to the action expires and an appeal or challenge is not filed or a criminal charge is not filed against the person in the Superior Court or a municipal court or justice court for at least thirteen months after the arrest, dismissal or vacation, all law enforcement, grand jury, prosecuting agency and court records that pertain to the arrest or charge shall be erased. The clerk of the court or the person who is charged with the retention and control of the records may not disclose to anyone the existence of the records or any information that pertains to any charge that was erased. This subsection does not prohibit an arrested, charged or indicted person or the person's heirs from filing a petition with the court or the clerk of the court to erase the records and, if granted, the records shall be erased.

B. The clerk of the court, any person who is charged with the retention and control of the records or any law enforcement agency that has information contained in the erased records may not disclose to anyone, except the subject of the record on submission of satisfactory proof of the subject's identity, information that pertains to any charge that is erased under this section. The clerk of the court or a person who is charged with the retention and control of the records shall forward a notice of the erasure to any law enforcement agency that the clerk or person knows information concerning the arrest has been disseminated and the law enforcement agency shall erase the records of the disseminated information. the clerk of the court or a person who is charged with the retention and control of the records shall provide adequate security measures to safeguard against unauthorized access to or dissemination of the records or, on the request of the accused, cause the actual physical destruction of the records, except that the clerk or person may not cause the actual physical destruction of the records until three years after the date of the final disposition of the criminal case to which the records pertain. A fee may not be charged in any court with respect to any petition under this section. Any person who has a record erased may state that the person has never been arrested within the meaning of the law with respect to the proceedings that are erased and may swear so under oath.

C. This section does not apply to any law enforcement, prosecuting agency or court record that pertains to an information or indictment that contains more than one count while the case is pending, or if the case is disposed of, only when all counts are entitled to erasure pursuant to this section.

D. For the purposes of this section, "record" includes every photograph of the person and all palm prints and fingerprints taken or made of the person. Record does not include a court record or transcript of the proceedings that is made or prepared by an official court reporter, assistant court reporter or monitor. END_STATUTE