REFERENCE TITLE: sealing arrest; conviction; sentencing records

 

 

 

 

State of Arizona

House of Representatives

Fifty-fourth Legislature

Second Regular Session

2020

 

 

 

HB 2893

 

Introduced by

Representative Toma

 

 

AN ACT

 

amending title 13, chapter 9, Arizona Revised Statutes, by adding section 13‑926; amending section 13-4033, Arizona Revised Statutes; appropriating monies; relating to criminal records.

 

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 


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

Section 1.  Title 13, chapter 9, Arizona Revised Statutes, is amended by adding section 13-926, to read:

START_STATUTE13-926.  Sealing of arrest, conviction and sentencing records; requirements; fee; appeal

A.  The court may seal the record of a person's arrest, conviction and sentence.  Except as provided in subsection B of this section, a person whose record is sealed shall be treated in all respects as if the person was never arrested, convicted or sentenced.

B.  A conviction that is sealed may be:

1.  Used as a conviction if the conviction would be admissible if the conviction was not sealed.

2.  Alleged as an element of an offense.

3.  Used as a historical prior felony 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.

C.  Except as provided in subsection E, F, G, L, N or O of this section, a person who is:

1.  convicted of an offense may petition the court that pronounced sentence to seal the person's record of arrest, conviction and sentence.  The court shall grant the petition If the court determines that granting the petition is in the best interest of the petitioner and public safety.

2.  Indicted for an offense but against whom charges are dismissed, who is found not guilty or whose conviction is vacated may petition the superior court in the county in which the indictment was filed to seal the person's arrest record or court record, or both.

D.  Unless the petitioner requests a hearing, the court may grant or deny a petition to seal a criminal record without a hearing.  The court may dismiss a petition that does not meet the requirements prescribed in subsections E, F, G, L, N and O of this section without a hearing.  The court shall provide a copy of the petition to seal a criminal record to the prosecutor.  the prosecutor may respond to the petition and request a hearing.  The victim has a right to be present and heard at any proceeding in which the defendant has filed a petition to seal a criminal record.  If the victim has made a request for postconviction notice, the prosecutor shall provide the victim with notice of the defendant's petition and of the victim's rights under this section.

E.  At the time of sentencing, the court shall inform the person in writing of the right to petition the court for an order that seals the person's arrest, conviction and sentencing records.  A person who was convicted of an offense and who has not subsequently been convicted of any other offense except a moving criminal traffic offense, excluding a conviction for a violation of section 28‑1381, 28‑1382 or 28‑1383, may petition the court to seal the person's record of arrest, conviction and sentence after the person completes all of the terms and conditions of the person's sentence and the following period of time has passed since the person completed the conditions of probation or sentence and discharge by the court:

1.  Ten years for a class 2 or 3 felony.

2.  Five years for a class 4, 5 or 6 felony.

3.  Three years for a class 1 misdemeanor.

4.  Two years for a class 2 or 3 misdemeanor.

F.  Notwithstanding subsection E of this section, if the person has a prior historical felony conviction, the person may petition the court to seal the person's record of arrest, conviction and sentence pursuant to subsection E of this section after the following additional lengths of time:

1.  If the person has one historical prior felony conviction, an additional five years.

2.  If the person has two historical prior felony convictions, an additional seven years.

3.  If the person has three or more historical prior felony convictions, an additional ten years.

G.  A person who is convicted of two or more offenses may not petition the court to seal a criminal record until the period of time prescribed in subsection E of this section has passed for each conviction.

H.  After a petition to seal a criminal record is filed, the court shall notify the department of public safety and request the department to prepare and submit a report to the court that includes all of the petitioner's state and federal arrests, prosecutions and convictions and any other information that the court requests or that the department believes will assist the court in making its determination.  The director may charge a fee determined by the director for the investigation unless the petitioner is indigent or has been found not guilty or the case was dismissed or not PROSECUTED and the petition is filed pursuant to subsection C, paragraph 2 of this section.

I.  If the court grants a petition to seal a criminal record:

1.  The court shall issue an order sealing the records of the petitioner's arrest, conviction and sentence and directing the clerk of the court to notify the department of public safety, the prosecutor and the arresting law enforcement agency, if applicable, of the sealing order.

2.  On order of a court, the clerk of the court shall seal all records relating to the arrest, conviction and sentence.

3.  The department of public safety shall seal and separate the criminal record from the department's records and inform all appropriate state and federal law enforcement agencies of the sealing.  The department may charge the successful petitioner a fee determined by the director to research and correct the petitioner's criminal history record unless the petitioner is indigent or has been found not guilty or the case has been dismissed or not prosecuted and the petition is filed pursuant to subsection C, paragraph 2 of this section.

4.  The arresting and prosecuting agencies shall clearly identify in each agency's files and electronic records that the petitioner's arrest or conviction and sentence is sealed.

5.  A person whose conviction is sealed pursuant to this section may state, in all instances, that the person has never been arrested for, charged with or convicted of the crime that is the subject of the arrest or conviction, including in response to questions on employment, housing, financial aid or loan applications unless any of the following applies:

(a)  The person is submitting an application for employment that requires a fingerprint clearance card pursuant to title 41, chapter 12, article 3.1.

(b)  The sealed conviction is for a drug or drug paraphernalia related offense and the person is applying for a job that requires handling or administering prescription drugs.

(c)  The sealed conviction is for burglary or theft from a residential or nonresidential structure and the person is applying for a job that requires entering into and performing services inside of a residential structure.

(d)  The sealed conviction involved child abuse or felony assault and the person is applying for a job involving supervising, educating or administering care to a minor.

(e)  The sealed conviction involved vulnerable adult abuse and the person is applying for a job involving supervising or administering care to a vulnerable adult or a person who is at least sixty‑five years of age.

(f)  The sealed conviction involved a violation of section 5-395.01, 5-396, 5‑397, 13‑1814, 28-1381, 28-1382, 28-1383, 28-8284, 28-8286, 28‑8287 or 28-8288 and the person is applying for a job involving the commercial or private operation of a motor vehicle, boat or airplane.

(g)  The sealed felony conviction involves theft, theft of means of transportation, forgery, taking the identity of another or fraudulent schemes and artifices and the person is applying for a job involving accounting, overseeing, transporting, handling or managing another person's money or financial assets.

6.  The person's employer is not liable for hiring or contracting with the person as prescribed in section 12-558.03.

J.  If the record of a person's arrest, conviction or sentence is sealed pursuant to this section, the record shall be made available for the purposes listed in subsection B of this section and to the following:

1.  The person whose record is sealed and the person's attorney.

2.  A law enforcement agency conducting a criminal investigation.

3.  A prosecuting agency to determine if a criminal charge should be filed and for prosecuting a criminal case.

4.  A probation department or in the preparation of a presentence report.

5.  A court for sentencing a person.

6.  the state department of corrections in the management of a person who is under the department's jurisdiction.

K.  This section does not require the supreme court or the court of appeals to seal any record.

L.  If the court denies a petition to seal a criminal record, A new petition may not be filed until three years after the date of the denial.

M.  A conviction for an offense that is committed in another jurisdiction and that if committed in this state would not constitute an offense in this state may not be used against the petitioner or prohibit the petitioner from having a record sealed.

N.  If the petitioner is charged with an offense after filing a petition to seal a record and the offense could result in a conviction that cannot be sealed or that could extend the time to file a petition to seal a criminal record, the court may not grant or deny the petition until the court disposes of that charge.

O.  this section does not apply to a person who is:

1.  Sentenced as a dangerous offender pursuant to section 13‑704.

2.  Convicted of a dangerous crime against children as defined in section 13‑705.

3.  Convicted of a serious offense or violent or aggravated felony as defined in section 13‑706.

4.  Convicted of any offense involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or knowing infliction of serious physical injury on another person.

5.  Convicted of sex trafficking pursuant to section 13‑1307.

P.  this section does not affect either of the following:

1.  The right Of the person whose record is sealed to appeal the conviction or sentence or to rely on it in bar of any subsequent proceeding for the same offense.

2.  The right Of a law enforcement agency to maintain an arrest and conviction record and to communicate information regarding the sealed record of arrest or conviction to prosecuting agencies and other law enforcement agencies for lawful investigative purposes or in defense of a civil action that arises out of the facts of the arrest or to the Arizona peace officer standards and training board solely to assist the board in determining the fitness of a person to serve as a peace officer, except that in any of these cases the information may not be disclosed to any other person. END_STATUTE

Sec. 2.  Section 13-4033, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4033.  Appeal by defendant

A.  An appeal may be taken by the defendant only from:

1.  A final judgment of conviction or verdict of guilty except insane.

2.  An order denying a motion for a new trial. 

3.  An order made after judgment affecting the substantial rights of the party.

4.  A sentence on the grounds that it is illegal or excessive.

5.  An order denying a petition to seal a criminal record pursuant to section 13‑926.

B.  In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation.

C.  A defendant may not appeal under subsection A, paragraph 1 or 2 if the defendant's absence prevents sentencing from occurring within ninety days after conviction and the defendant fails to prove by clear and convincing evidence at the time of sentencing that the absence was involuntary. END_STATUTE

Sec. 3.  Applicability

Section 13‑926, Arizona Revised Statutes, as added by this act, applies to a person who is arrested, convicted or sentenced before, on or after the effective date of this act.

Sec. 4.  Appropriation; administrative office of the courts; court programming costs

The sum of $500,000 is appropriated from the state general fund in fiscal year 2020-2021 to the administrative office of the courts to pay for the costs of implementing section 13-926, Arizona Revised Statutes, as added by this act.