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How Does Someone’s Criminal History Affect Setting Aside A Record?


If you have a lengthy criminal history, it is definitely going to be harder to set aside a newer conviction. If you get more convictions between the time of the conviction that you are trying to set aside and the time that you are filing to set it aside, that will definitely make it more difficult. A judge will be less likely to grant your motion, because setting it aside in Arizona is just like a judge saying, “I believe you have done everything that you were required to do for those convictions, and we no longer consider it important for this conviction to be reflected on your record.” In Arizona, it doesn’t remove it from your record. It just comes with a notation that the judge set this conviction aside. The only practical application this has is a lot like potential employers that run background checks.

If you did everything that was required, it would be as if the judge said, “You know what? I don’t think you need to be punished further by this, and you haven’t given us any reason to believe that you are going to continue to engage in criminal activity. So we’ll set it aside.” It’s just that annotation. From a practical standpoint, a prosecutor can still use those convictions that were set aside as a prior, if it applies in certain situations. It doesn’t remove its potential for enhancing your punishment down the road, as long as it is within the correct time parameters.

What Is The Process To Have A Record Set Aside Under Arizona Law?

For a felony, the process to have a record set aside starts with a motion to set aside, that I draft on behalf of my clients. I first gather some information, I look through the case records or the case history, confirm what the sentencing requirements were, and find out if they were successfully terminated or if they have successfully completed any probation. I make sure with the clerk of the court that all the fines and the fees have been paid, and any other requirements that I can verify their completion. I want to do that before I file the motion, because if they were not met, then the motion is just going to be rejected. From there I put all that information in, and I also include information about the passage of time, and the lack of any criminal activity or the lack of any past criminal activity, if that’s appropriate. I paint as good a picture as I can to the court, so that they understand that this was either a one-time mistake, or one that’s not going to be repeated, and one where the clients complied fully with the penalty.

From there, a judge may ask for more information, or a judge may set a hearing, in order to ask for the state’s input on it. It’s really up to the judge at that point. In most situations, the judge is going to make a decision based on the pleading itself, and they won’t actually set a hearing on it. That’s how this process typically works. It’s a very paperwork driven process.

What Is The General Timeframe For Having A Record Set Aside?

There is no hard and fast rule on a timeframe for having a record set aside. In a felony situation, doing it any less than an year after completion of probation or terms being met, probably won’t be very successful, unless the term of probation has been very long and the client has been successful on it. For the most part, I like to put an amount of distance between the completion of the conviction and the motion, so that we can give the judge a feeling of comfort that enough time has passed as to give the judge an idea that the person is not going to continue to be a problem.

If I Am Ineligible To Have A Record Set Aside, Can I Do Anything At That Point?

If you are ineligible to have a record set aside, there is nothing for you to do. Set aside really is the mechanism for it, and you can’t completely expunge a record. The only other situation where a full expungement or destruction of the file is available is when the offenses were committed as a juvenile. In Arizona, your juvenile file will be sealed at age 18, and you can also file a motion to have the record of conviction destroyed as well. Much like the adult process, an evaluation is undertaken to make sure that everything was completed successfully, and that there are no further issues. Then, that record can be destroyed, where the court will actually destroy the file involved. I’ve successfully been able to do that a number of times for juveniles, as long as they are able to stay out of trouble after the initial conviction.

What Would Show On My Record If A Conviction Was Successfully Set Aside?

You’ll still see the initial arrest on your record, as well as the date of the complaint or when charges were filed. You’ll see that there was a conviction on a date at some point where the case was resolved, and then notated next to that conviction should be something to the effect of conviction set aside, with a date as to when that happened as well.

Do I Need To Hire An Attorney To Have A Record Set Aside?

If you are dealing with a felony situation, it’s definitely quite helpful to hire an attorney. The court needs a lot of information, in the format that is preferred. Misdemeanors are not as complicated, not as in depth, and people can sometimes handle it on their own, but I think it’s always helpful to hire an attorney. I don’t charge outrageous prices to deal with these cases, because I basically charge for the time spent doing the research, to make sure that everything is complied with, and that it’s worth filing a motion and it’s on merit. If there is a hearing sometimes, we charge for the hearing, but other than that it is more research and paperwork driven.

For more information on Criminal History & Setting Aside A Record, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (602) 456-1982 today.

Jared Allen, Esq.

Get your questions answered - call me for your free, 20 min phone consultation (602) 456-1982.

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