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New Arizona Bill Would Greatly Improve Record Clearing Law

UPDATE: (Posted 10/26/2018) HB 2057, specifically regarding amending ARS 13-907, was never voted on in 2014 and remained a dead issue never to be resolved. You may send comments or complaints directly to Senate representative John Kavanagh-AZ or to his replacement at:

John Kavanagh
Office Phone​: (602) 926-5170
Email: [email protected]
Official Website Arizona State Senate:
https://www.azsenaterepublicans.com/john-kavanagh

Arizona Rep. John Kavanaugh has introduced a bill that would provide much needed reform to Arizona’s outdated and largely ineffective post-conviction relief law that allows for the setting aside criminal convictions. The bill, HB 2057, would give a judge the power to seal a criminal record that has been set aside if good cause is shown.

Under current Arizona law, many former offenders can petition the court to set aside their conviction, which dismisses the case pursuant to ARS 13-907. This law, which is similar to California’s expungement law (CA Penal Code 1203.4), does provide minimal relief to former offenders, however, it only changes the record, it does not conceal or destroy the record. As a result, former offenders in Arizona often find that they are subject to a lifetime of humiliation and discrimination when seeking housing and employment, even when they are on longer convicted of the crime.

The lack of a way for rehabilitated former offenders to truly seal or expunge their records in Arizona is particularly unsettling as Arizona courts and prisons make their records easily accessible via the internet.

This bill is currently in the House Judiciary committee. Most states have rejected or amended similar bills that allowed judges such broad discretion to seal records. It would not be surprising to see the bill amended to include a waiting period and added exemptions that would allow certain licensing authorities (for example the State Bar or Board of Nursing) the ability to continue to have access to the sealed records.

Recommendations:

– Add a waiting period that starts from the time an offender’s sentence is completed (excluding the payment of fines if the petitioner can demonstrate that they were unaware of the outstanding balance or unable to pay)
– Allow certain licensing authorities access to records if the offense was within seven years.
– Provide a more instructional standard than “showing of good cause.” A standard such as “upon a showing of rehabilitation by clear and convincing evidence” may be more useful and provide more guidance to petitioners and the court.
– Provide guidance as to when an offense should be set-aside. Arizona courts provide unequal treatment of requests for relief under ARS 13-907. While courts outside of Maricopa County approve the majority of requests, courts in Maricopa approve far less than 50 percent of requests.

HR 2057 amends ARS 13-907 to add the following:

E. ON REQUEST AND A SHOWING OF GOOD CAUSE, THE JUDGE, JUSTICE OF THE PEACE OR MAGISTRATE MAY SEAL THE RECORD OF A PERSON WHOSE JUDGMENT OF GUILT IS SET ASIDE. IF THE JUDGE, JUSTICE OF THE PEACE OR MAGISTRATE SEALS THE RECORD, THIS STATE AND ANY AGENCY OR POLITICAL SUBDIVISION OF THIS STATE MAY NOT KNOWINGLY DISPLAY OR DISCLOSE ANY INFORMATION THAT IS INCLUDED IN THE RECORD OF CONVICTION ON A PUBLIC WEBSITE OR IN RESPONSE TO A PUBLIC RECORDS REQUEST. A PERSON WHOSE RECORD IS SEALED MAY REQUEST THAT THIS STATE AND ANY AGENCY OR POLITICAL SUBDIVISION OF THIS STATE REMOVE FROM PUBLIC DISCLOSURE ANY INFORMATION THAT IS INCLUDED IN THE SEALED RECORD.

About the Author

Mathew Higbee

Mathew Higbee is one of the nation's leading authorities on criminal record clearing. He is the founder of RecordGone.com, the nation's most visited expungement related web site and law firm that serves 12 states.

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