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Criminal Defense

Set Aside

HAVE YOUR CRIMINAL CONVICTION SET ASIDE

Here at Alcock and Associates we believe that many good people unfortunately find themselves in bad situations. We believe that these situations should not impede an individual from moving forward. Even old, low-level traffic offenses can hold people back from advancement and seeking the jobs that they truly desire.

When an individual has been convicted of a misdemeanor or a felony, one of the most difficult aspects is being able to reintegrate yourself into the community and society. Having a criminal conviction on your record can prove to be an obstacle when applying for a job and even when looking for housing. Fortunately, the state of Arizona allows for individuals to ‘set aside’ their criminal conviction and allows them to restore civil rights which include the right to bear arms and the right to vote.

WHAT IS A SET ASIDE?

Unfortunately, the state of Arizona does not offer expungements of criminal convictions. An expungement is essentially the act of erasing or sealing an arrest or criminal charge from your criminal record. Because the state of Arizona does not offer expungement, they offer what is known as a ‘set aside’. This is different from an expungement. In regards to set asides, the Arizona statute states that “If the application is granted, the court shall set aside the judgment of guilt, dismiss the complaint, information or indictment and order that the person be released from all penalties and disabilities resulting from the conviction”.

A set aside will not remove or erase the criminal conviction or charge from your criminal record. However, if your motion to set aside your criminal conviction has been approved, depending on your record and how the Department of Public Safety annotates your conviction, if an employer or landlord were to look at your criminal record, it will either show no conviction or it will state that your conviction was set aside. It will show that the individual has satisfied all the conditions or requirements of their sentence or probation and that the charges against the individual were dismissed. In order for a conviction to be set aside in Arizona the conviction must have taken place in an Arizona court. Convictions from other states can not be set aside in Arizona.

One important aspect of set asides that one must keep in mind is that if a conviction has been set aside the state can use that set aside conviction in prosecutions for future offenses. For example, if the court approves and sets aside an individual’s DUI conviction, the state can use that set aside conviction as a prior in a future DUI case. Also, if a conviction has been set aside, it will not affect the penalties that have been imposed by the Department of Transportation which include the revocation of a driver’s license.

With this being said, if a person were to receive a set aside, individuals and employers who were to do a background check are likely to look at your record in less of a negative way and more in a positive light. Unfortunately there are still some employers who still treat this as if it were a conviction. The good thing is that for certain felony and DV cases misdemeanor offenses, a set aside can restore your constitutional rights.

WHAT ARE THE OFFENSES THAT ARE UNABLE TO BE SET ASIDE IN ARIZONA?

  1. Here in the state of Arizona there are several offenses that do not apply to a set aside. A set aside does not apply to an individual who has been convicted of the following:
  2. Offenses that were sexually motivated under A.R.S. § 13-118
  3. Offenses that involved a minor
  4. Offenses in which the individual is ordered by the court or required to register as a sex offender under A.R.S. § 13-3821
  5. Offenses that include operating a vehicle with a cancelled or suspended license
  6. Offenses that involved serious physical injury and;
  7. Offenses that involved the use of a deadly weapon

There are also some statutory offenses that are excluded from being able to be set aside. These offenses that cannot be set aside include Criminal Speeding, Driving on a Suspended License, and Reckless Driving.

WHAT ARE THE STEPS TO SETTING ASIDE A CRIMINAL CONVICTION?

Arizona is one of the states that makes setting aside a criminal conviction very accessible to individuals. In order for an individual to set aside a criminal conviction they must first complete all the conditions or sanctions of the given conviction, whether it be a prison sentence, jail time, probation, or fines. For example, if, as the result of a conviction the court has ordered you to pay a fine or to do a certain number of hours of community service, then in order to be able to apply for a set aside you must first pay the fine, complete the hours of community service or complete whatever sanction was given from that conviction.

After this, the next step is for the attorney to petition to set aside your condition. The attorney will fill out the application as well as ensure that the terms of your conviction have been completed. The petition will then go to the court for review and decision.

There are several factors that the court may consider when determining whether an individual’s petition to set aside is either approved or denied. In their judgment the court may factor in:

  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.

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Here at Alcock and Associates our team and staff are dedicated to helping and representing YOU. The first step is to understand your case. We will take the time to get to know you and your legal situation so that we are best able to answer all of your questions. After your initial consultation with our attorneys, you will know what you are facing and what can happen to your case.
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Alcock & Associates P.C.
2 North Central Avenue, 26th Floor
Phoenix AZ 85004

602-989-5000
© 2020 Alcock & Associates, P.C. © 2020 Alcock & Associates, P.C.

Alcock & Associates P.C.
2 North Central Avenue, 26th Floor
Phoenix AZ 85004