Application To Set Aside A Conviction

This page discusses set asides in the context of misdemeanor convictions. We discuss felony set-asides and restoration of rights on a separate page.

What does it mean to set aside a conviction?

In short, when a conviction is set aside, it changes how that conviction is reported on a criminal background check. To understand this in more detail, we must discuss where criminal records live.

When a person is convicted of a crime, the court notifies Arizona Department of Public Safety (DPS). DPS is who maintains criminal records in Arizona. If someone does a criminal background check, the conviction should then show up. The record will reflect that the person has been convicted of whatever charge it was.

When a conviction is set aside, the charge will still show in a criminal background check. The set aside does not erase the existence of the charge. However, when someone conducts a criminal background check, the charge will be reported differently. Instead of reflecting a conviction, it will say “set aside and dismissed”.

What is the difference between setting aside a conviction and expunging a conviction?

To “expunge” a conviction would mean to erase the existence of the conviction from existence. Expunging a conviction is not possible in Arizona except in a few very specific circumstances. A set aside means that the conviction is in effect undone, and the charge is then dismissed. The record of the charge still exists, the record of the case still exists, and really the record of the conviction still exists. It is just that the conviction has been undone.

Arizona now has a process to seal criminal records, which is the closest Arizona has to expungement in most cases.

If setting aside a conviction does not erase the record, why ask to set aside a conviction?

If you have a criminal conviction in your background, there are times you may need to offer an explanation. For example:

• • A job application that asks if you have ever been convicted of a crime.
  • An application for some licenses, like applying to be licensed as a lawyer.
  • An application to serve on the board of some organization.
  • If the conviction has been set aside, it makes explaining what happened a little easier.

If a conviction is set aside, does it still show on MVD records?

Yes. Once a violation is reported to the MVD, it’s there for good. If a conviction is set aside, the violation will still show on MVD records afterwards.

How do you apply to have a conviction set aside?

A.R.S. 13-905 governs the set aside process.

You must make your application to have a conviction set aside to the court where the conviction took place.

The application must be in writing.

You can apply for the set aside anytime after you have completed the sentence. In most traffic-related cases, this means anytime after the fine as been paid. If there is jail time or probation as part of your sentence, those must be completed prior to applying.

The court will consider 7 factors in deciding whether or not to grant the set aside:

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.

Other considerations.

Some courts, like Scottsdale City Court for example, have their own form available to use. These forms are very bare-bones and sometimes more information may be helpful. Depending on the circumstances, it may be useful, even necessary, to address in some detail in the application the 7 factors noted above.

We often see judges wanting some amount of time to pass before granting an application to set aside. We usually wait about 3 months following a conviction before applying for a set aside.

We also see judges who want to see a clean driving history for some time after the conviction, if the conviction was traffic-related.

If a judge denies your application to set aside, they have to tell you why.

If your application to set aside is denied, you can always apply again. If it is possible to address the reason for the denial, do so and then reapply.

Whether or not to grant an application to set aside a conviction is at the judge’s discretion. A judge is not required to grant a set aside. In our experience though, judges are typically pretty generous with the granting of set asides.

What is a Certificate of Second Chance?

Quoting from the statute, A.R.S. 13-905(M): 

The certificate of second chance:

1. Unless specifically excluded by this section, releases the person from all barriers and disabilities in obtaining an occupational license issued under title 32 that resulted from the conviction if the person is otherwise qualified.

2. Provides an employer of the person with all of the protections that are provided pursuant to section 12-558.03.

3. Provides another person or an entity that provides housing to the person with all of the protections limiting the introduction of evidence that are provided to an employer pursuant to section 12-558.03, subsection B.

4. Is not a recommendation or sponsorship for or a promotion of the person who possesses the certificate of second chance when applying for an occupational license, employment or housing.

How does a certificate of second chance help?

For the types of cases that our clients are involved in – misdemeanor traffic charges like criminal speeding, racing, or failing to stop at a port of entry, for example – a certificate of second chance isn’t going to mean much. A conviction for most of the driving-related misdemeanor violations is not going to prevent someone from getting a professional license or housing or a promotion. A certificate of second chance is going to be a lot more important to someone who has been convicted of a felony. A felony could be a bar to obtaining some professional licenses or even housing. The certificate of second chance is intended to eliminate those barriers for people who are otherwise qualified for the license or housing.

A court must issue a certificate of second chance when setting aside a misdemeanor.

The way the law is written, if court grants an application to set aside a misdemeanor conviction, the court must also issue a certificate of second chance. See A.R.S. 13-905(k)(1). So anytime a misdemeanor conviction is set aside, it is coming with a certificate of second chance.