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Motion to Set Aside conviction? Isn’t this just an “Expungement?” To answer this question, we need to peel back a few layers.
In Arizona, a person can be convicted of a Misdemeanor or a Felony (or a combination of the two). A misdemeanor crime is punishable by no-more-than one year in jail, no-more-than three years on probation, and no-more-than $2,500.00 in fines and fees. An exception exists for misdemeanor DUI and Domestic Violence offenses; probation increases to no-more-than five years and fines are increased based on statute(s) and applicable municipal codes. Misdemeanors are handled in City/Municipal Courts or County Justice Courts.
Felonies are much more severe. Under State law, the maximum fine is $150,000.00 (plus an 83% surcharge) and probation can be up-to lifetime depending on the nature of the conviction. Generally, probation does not exceed seven years. Of course, depending on the crime, the court could order other statutory fines and penalties. Also, prison is available for all felonies and, for some, prison is mandatory.
Well, if the conviction and punishment were this simple, I would not need to continue; you wouldn’t be reading this. However, you need to be aware of other punitive issues; collateral consequences that likely brought you to read this article.
For all felonies, you lose the following civil rights:
Additionally, most felony drug convictions (under ARS §13-3401) eliminate any eligibility to receive financial aid for college/higher education, social security benefits, and food stamps/government assistance opportunities. Other collateral consequences resulting from a felony conviction could include termination of parental/guardian rights and right to adopt a child; impede your ability to rent an apartment; impede your ability to find/maintain employment. Keep in mind, a felony conviction may affect other privileges many people often take for granted.
In a general sense, and relatively speaking, misdemeanor convictions do not come with severe consequences. As I mentioned, felonies are “more severe” than misdemeanors. However, if you were convicted of a “Domestic Violence offense,” you are now considered a “Prohibited Processor” under Federal law pursuant to 18 U.S.C. §922(g)(9) a.k.a. the Brady Handgun Prevention Act. Simply said, you cannot possess a firearm.
Yes, almost certainly. In Arizona, your conviction may be “Set Aside” depending on a handful of factors. Arizona Senate Bill (SB 1189) provides, every person convicted of a criminal offense [some exceptions apply]” may apply to the sentencing court and request the conviction be “Set Aside” so long as your entire sentence is satisfied; you successfully completed all court-ordered terms and conditions.
You must understand, the court is not compelled to grant your motion.
Specific to Domestic Violence misdemeanor convictions, once your conviction is Set Aside, you or your attorney need to notify the Federal government to ensure you are no longer considered a “Prohibited Possessor.” How do you notify the Federal government? Log on to the NICS website, print and complete the appropriate forms, and send them to the address provided. I bet you are thinking: “how long will it take for NICS to process the paperwork?” This is often the most common question and is the “million-dollar question.” Unfortunately, NICS does not provide any timelines. Theoretically, NICS could take as long as they want. However, usually, if handled correctly, I have gotten client’s results within two or three months. Hiring an attorney to help with the NICS process may be beneficial.
This is where the “may” (from #3) comes into play; the type of conviction becomes important. Pursuant to ARS §13-905, once your sentence is satisfied a person may apply to the court, “to have the judgment of guilt set aside.”
The application for set aside must be submitted to the court where the person was sentenced and must be before the same judge who imposed the sentence. If the sentencing judge is not available, the application will be submitted to the judge who took over the sentencing judge’s cases. The judge “shall” consider a series of factors when deciding on the person’s application: 1) Nature and circumstances of the offense; 2) the person’s compliance during their sentence; 3) prior or subsequent convictions; 4) Victim’s position (if applicable); 5) amount of time between conviction and application; 6) applicant’s age when convicted; 7) any other factor(s)—This is a “catch-all.”
Remember the “exceptions” I mentioned earlier? Pursuant to ARS 13-905(K), if the conviction is designated “dangerous,” you cannot apply to set aside the judgment. Furthermore, you cannot apply to set aside the judgment if the conviction requires registration pursuant to ARS 13-3821; includes a finding of sexual motivation pursuant to ARS 13-118; is a felony offense and the victim was under 15 years old; Driving on a Suspended License pursuant to ARS 28-3473, any offense under Chapter 3 of ARS Title 28 except DUIs.
If your conviction is designated “serious,” you must wait ten years after you completed your sentence before your gun rights are eligible for restoration.
Until a new set of DUI-related expungement laws are enacted in 2023, it is impossible to have your record sealed in Arizona. However, if a juvenile court judge adjudicated the case, your conviction may be eligible for destruction.
Once all terms of your sentence have been successfully completed, and you satisfy the eligibility requirements (discussed below), you may apply for a Set Aside pursuant to ARS §8-348, and you may apply to destroy the Juvenile Record, pursuant to ARS §8-349.
Eligibility requirements for Set Aside and/or Destruction are:
Federal Courts also set aside convictions. Between Arizona and the Federal Courts, the process is arguably similar. However, for a felony conviction, when it comes to restoring gun rights, Federal Law requires the Bureau of Alcohol, Tobacco, and Firearms (BATF) determine two issues:
Keep in mind one very important fact: BATF has not allocated the funds to make these determinations in quite some time. For the foreseeable future, it appears the Federal Government does not intend to fund the BATF division responsible for gun rights restoration.
All is not lost. An alternative option is available. You can apply for a Presidential Pardon from the President of the United States of America. If successful, your conviction will be Pardoned. Said another way, your conviction is “expunged.” Thus, your rights are restored, and your conviction is wiped clean from your record. You should be very aware, applying for a Presidential Pardon is not a simple process by any means, and there are no time limits for the President to grant or deny your application.
*Here is an in-depth look at the major gun-control acts in America as well as breaking down how background checks actually work.