Expungements, Set Asides, And Clearances
Several times a week I am asked, “How can I get my record expunged?” Most of us think of expungement as the removal or destruction of arrest and conviction records such that if an employer did a background check, the arrest and conviction would not show up.
The short answer to this question is that you cannot expunge your record in Arizona. The law regarding expungement varies state by state, and perhaps in some states, expungement is possible. In Arizona, however, no statutes authorize the destruction of your arrest or conviction records.
Arizona does have two statutes that are sometimes erroneously referred to as expungement. Neither of the statutes authorizes the destruction of arrest and court records.
The “Set Aside” – A.R.S. § 13-907
A.R.S. § 13-907 authorizes a “set aside.” A “set aside,” however, will not remove an arrest or conviction. It does not hide a conviction. Because of this, it is nothing like “expungement.” There is, admittedly, a great deal of confusion regarding this topic and much of it can be attributed to misinformation on the Internet. With the Internet, there has been a proliferation of web sites offering to “expunge” criminal records. A review of these web sites typically shows that they are actually promoting a “set aside.”
A "set aside," in essence, places an asterisk or note next to a conviction indicating that the conviction was “set aside.” The questions arise, “What exactly is a "set aside?" and "What good is it?” These are good questions and there are not simple answers to them.
What Is A Set Aside?
A “set aside” is a legal fiction. It tells the reader of the court record that even though the conviction is there, the reader is to look at the conviction in a different light, almost as if the conviction did not exist. In theory, the set aside is supposed to release a person from all penalties and disabilities resulting from a conviction while still leaving the conviction in the court records.
A “set aside," even though it releases a person from disabilities resulting from a conviction, will not release a defendant from the actual terms imposed as part of the sentence. Because the sentence itself is not released, all terms imposed at sentencing must be met prior to a set aside being granted. Once a defendant has done all of his or her punishment, the “set aside,” hypothetically releases them from further penalties and consequences.
While the “set aside” hypothetically releases a defendant convicted of an offense from any disabilities caused by the conviction, the “set aside” does not prevent the State from using the conviction in any subsequent criminal proceedings, something many individuals would consider a primary disability stemming from a criminal conviction. Additionally, a “set aside” also has no impact on Arizona Motor Vehicle Division. Most importantly, a "set aside" does not mean a defendant can answer “no” to an inquiry of whether he or she has been convicted of a crime.
The "Set Aside" and Public Records
An important aspect of the “set aside” is that it has no effect on public records. Police reports, arrest records, and court files are all public records. Because they are public records, anybody can request them. If you want to see a police report, you can go to the police station and make a public records request. If you want to see how your neighbor's law suit, or Tucson DUI case resolved, all you have to do is go to the court house and request to look at the file. In many cases, it is not even necessary to go to the courthouse. Many courts have searchable databases online. Tucson City Court and Pima County Justice Court are online and anybody can search by name or docket number. Of course, if it is your record being looked up, this is a bit disconcerting.
The Internet Background Check
Because almost all court records today are digitalized, records take up little or no room and can be kept forever. Many if not most records now can be accessed from computers, and often, as noted above, they are searchable right on the Internet. This is creating huge problems for people. Employers can now pay a minimal fee for reports generated by companies that electronically search these databases. People are finding out that these reports contain entries for even minor civil infractions such as parking and traffic tickets. Individuals that have no “real” criminal record now are finding that they nonetheless have a “record.” Unfortunately, because a "set aside" does not result in the destruction or sealing of any records, a "set aside" will not mitigate this problem.
A Criminal Record “Clearance” -- A.R.S. §13-4051
The closest thing Arizona has to true expungement is a criminal record “clearance” pursuant to A.R.S § 13-4051. The statute is limited in its application in that it demands a showing of actual innocence or a showing of a wrongful arrest. Merely being acquitted of a crime is insufficient. In as much, there are very few cases in which A.R.S. §13-4051 is applicable.
Secondly, like the “set aside” a clearance under A.R.S. §13-4051 does not destroy records.
A.R.S. §13-4051(A) provides:
“Any person who is wrongfully arrested, indicted or otherwise charged for any crime may petition the superior court for entry upon all court records, police records and any other records of any other agency relating to such arrest or indictment a notation that the person has been cleared.”
Diversion and Dismissals…
“I did diversion. I was told my case would be dismissed, but it still shows up…”
First time offenders charged with relatively minor offenses often are given a chance to do diversion. If one successfully completes the diversion program, the prosecutor dismisses the charges. Of course, a dismissal is about as good as it gets. Once one has been charged, the best outcome is a dismissal. The result of the dismissal is no criminal conviction record.
One of the problems we have today, however, is that employers are still finding out about the charges. As I noted above, once charged, it is part of the public record. Not only is the fact that one was charged always part of the public record, but often times, the fact that the case was dismissed by way of a diversion agreement is clearly indicated in the public record.
The problem with this is that today, many employers view diversion dismissals differently than other dismissals. Typically when a defendant enters into a diversion agreement the defendant must admit guilt. Even though the charges are ultimately dismissed, many employers understand that the prospective employee nonetheless admitted guilt. In other words, they know that this was not a situation where the charges were dismissed because the case was weak. When they see diversion, they know the accused was given a break.
Of course this certainly mitigates any advantage a diversion agreement is supposed to have, and as noted above, Arizona does not have a mechanism for the destruction of the arrest and conviction records. The fact that these records, whether they are court records or police records, are public documents lies at the heart of the problem. Arizona law simply does not provide for the destruction of public records.