Why you should set aside an Arizona criminal conviction under A.R.S. 13-905
(Updated 9/10/21) Perhaps you feel it’s time to take steps to get your life back in order after a conviction and you’ve started researching the subject. You might be wondering if it’s worth investing in legal proceedings to set aside your offense. Here are 5 reasons why you should consider setting aside a criminal conviction:
A set aside shows the world you’re not a “criminal.”
Everyone makes mistakes but, now, those mistakes are more public than ever. Our easy access to public records, while useful, also gave rise to unscrupulous websites that capitalize on this. They publish embarrassing information for the world to see and then try and charge you to take it down. Even if you haven’t been caught by these extortionist-type websites, chances are that your most embarrassing life moment is just a click away. But Arizona law allowed the court to:
…set aside the judgment of guilt, dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction…
Naturally, being released from those penalties and disabilities is a powerful way to show the world that you’re not a criminal. And, the set aside is also a public document that’s located in the very same place as your old conviction. So, the rest of the world could see that too.
A set aside releases you from the judgment of guilt.
There’s something therapeutic to setting aside an offense. You’ll be surprised just how liberating that little piece of paper can be. But more importantly, it legally sets the judgment of guilt aside. This not only helps you with future employment or housing opportunities but also releases you from many of the tangential consequences associated with a conviction. While setting aside a judgment of guilt will not stop the Arizona Motor Vehicle Division or Arizona Game and Fish consequences, it will stop other civil penalties. And even though those pesky MVD consequences aren’t affected by the set aside (for example, points off your driving record), it’s a big step on your road to recovery.
A set aside makes it easier to get a job.
When filling out an application for employment, you’ll need all the help you can get if you’ve got a conviction on your record. The job market is hard enough as it is. Now, you can’t hide the public record and shouldn’t lie to an employer when asked about your record. This is a sure-fire way to lose that prospective job when they conduct a background check (remember, a set aside does not seal or destroy your record). But a motion to set aside does allow you to show that prospective employer that a court of law set aside the judgment of guilt and released you of all “penalties and disabilities resulting from the conviction.” This is a great way to broach a difficult subject and get your side of the story out before your prospective employer discovers the prior record.
Think of it from the employer’s perspective. If you’re interviewing for a job opening and an applicant tells you he or she hasn’t been convicted of anything but you see something in a background check, you’re likely to just tell the employee that the position has been filled. Most employers don’t even know what a set aside means. But if the prospective employee carefully explains what happened in the application and provides paperwork showing that his or her conviction was legally set aside, you’re going to feel much better about that applicant.
First, that prospective employee just built a level of trust with you. You know that employee was honest and had the courage to explain and get out in front of his or her past. Everyone makes mistakes and people are more sympathetic than you might think. Sure, everyone makes rash judgments when they hear the word conviction but if they know the whole story and how far you’ve come since, you might be surprised how little they care about the prior conviction.
Second, if you explain what a set aside means and provide the court order, your employer now has legal paperwork showing the conviction was vacated. Some companies have policies that won’t allow them to hire someone with a criminal record without exception. This is the problem with online applications sorted by a computer instead of a human being. Also, some companies require an Arizona Department of Public Safety fingerprint clearance card to be eligible for a job. Even so, a motion to set aside is a step in the right direction to getting your DPS fingerprint clearance card back too. And if the prospective employer really likes you, they now have legal paperwork that can be brought back to the HR department, informing them that your judgment of guilt was legally set aside and that you were released from all “penalties and disabilities resulting from the conviction.” That’s a powerful tool that can clear obstacles in the way of your dream job.
A set aside in Arizona is accessible.
Gone are the days of warnings and lectures. Gone are the days when police would break up a fight and tell everyone to cool off. We’ve regulated ourselves to the point where everything leads to more charges and rules. In many ways, we’ve lost our discretion. We’re a society of policies and paperwork now. When you combine that paperwork with easy access to online records, it’s problematic on a human level. Even more troubling is that most states don’t offer true expungement, Arizona included. But the news is not all bad. In reality, Arizona is much more liberal in allowing those convicted of crimes to move on than many other states. Although Arizona law doesn’t provide a mechanism to seal most adult convictions, a person can theoretically set aside a conviction the day after they finish their sentence. For example, it’s not hard to find states that can make people wait as long as 20 years before they’re eligible to set aside or expunge an offense. That’s right–20 years! For most offenses, you’re eligible to set aside the judgment of guilt upon fulfillment of sentence and probation in Arizona. This means that just as soon as probation, jail, fines, classes, or whatever penalty the judge sentenced you to is completed, you’re eligible. That’s it. In rare circumstances, the court may feel that a set aside is appropriate right after sentencing–meaning the judgment of guilt lasted a whole two minutes before it was set aside. While it is unusual for cases to be set aside that quickly, the point is that the court has full discretion to decide when a set aside is appropriate just as soon as the sentence is over. Hiring an attorney experienced with set-asides really helps. Getting the set aside sooner rather than later can be the difference between better employment and housing or not.
A set aside restores your civil rights, including your gun rights.
In 2015, the Arizona Legislature added A.R.S. 13-905(J) to the set-aside statute. It states that “…if a conviction is set aside, the person’s right to possess a firearm is restored. This subsection does not apply to a person who was convicted of a serious offense as defined in section 13-706.” In other words, unless you were convicted of a serious offense such as Aggravated Assault with a Deadly Weapon, Kidnapping, Armed Robbery, Sexual Assault, Murder, or other serious offenses listed in A.R.S. 13-706, your gun rights are automatically restored in Arizona if you get a set-aside. While that may or may not be important to you, even people who do not like the idea of gun ownership may simply want to know that they are made whole again and have all their civil rights restored. For those who want their Second Amendment rights back, a set aside is an important step that will automatically restore gun rights. Even if you live outside of Arizona now, most states and the federal government will recognize the Arizona set-aside.
A set aside is a new beginning.
Our focus is second chances. I’m passionate about this subject. That’s not to say that consequences and laws aren’t important but, equally important, are the concepts of acceptance and forgiveness. We’ve lost sight of that in our modern, fast-paced society. If nothing else, a motion to set aside is a legal action that takes steps toward beginning your new life. It may sound a little hokey but I’ve seen how important this symbolic little piece of paper is to bolster clients’ resolve in their commitment to permanently turn their life around or get back on their feet.
If you’re considering setting aside any past convictions but are on the fence about it, I believe that it’s well worth it. I wish Arizona’s set aside statute had more teeth and perhaps someday it will. But until that time, a motion to set aside is the best we have. Whatever your reasons for wanting a set-aside, don’t delay. There is no time like the present to start taking steps toward a new future.
