Arizona enacts its very first sealing law – and it’s impressive!
In July 2021, in an unheralded action in the final days of its legislative session, Arizona enacted a law that authorized its courts for the first time to seal conviction records. See SB1294, enacting Ariz. Rev. Stat. § 13-911. The same law authorized sealing of uncharged arrests and dismissed and acquitted charges, also for the first time. Prior to this enactment, Arizona was one of a handful of states whose legislature had made no provision for limiting public access to conviction records, and was literally the only state in the country whose courts and records repository had no authority to seal non-conviction records. Now the state will have one of the broadest sealing laws in the country when it becomes effective on January 1, 2023.
(In the November 2020 election, Arizona voters approved a proposition to legalize marijuana, which included a provision for expungement of certain marijuana-related records. But until now no general sealing authority had been enacted by the Arizona legislature.)
As described below, the law makes all but the most serious offenses eligible for sealing after completion of sentence (including payment of court debt) and a graduated waiting period. It also appears that 1) multiple eligible convictions may be sealed, in a single proceeding or sequentially; 2) the prior conviction of a felony (even if ineligible) does not disqualify an eligible offense from relief but simply extends the applicable waiting period; 3) a conviction during the waiting period restarts the waiting period; and 4) there is no limit on the number of occasions on which sealing may be sought.
The applicable procedures are fairly straightforward, with no hearing necessary unless the prosecutor requests it, and the court required to grant relief if it determines that “granting the petition is in the best interests of the petitioner and the public’s safety.” Many of the obligations to acquire and serve documents that burden petitioners in other jurisdictions and act as barriers to access are assigned by law to the court. Hopefully, in preparing to implement the law over the next 18 months until it becomes effective, Arizona practitioners can develop educational resources and training programs to facilitate applications by pro se petitioners, and Arizona courts can develop standardized forms and an efficient e-filing system to further enhance the new system’s efficiency. Inaugurating a brand new system at a time when other jurisdictions are recognizing the access-to-justice flaws in existing ones may give Arizona certain advantages.
The law is described in greater detail below.
Sealing of felony and misdemeanor convictions
The new law makes all convictions except Class 1 felonies, and certain violent and sexual offenses, eligible for sealing. § 13-911(O). By its terms, the law does not limit the number of convictions that may be sealed; nor does it limit the number of times a person may request sealing. As such, it is one of the broadest sealing authorities in the country. Its eligibility provisions are logical but somewhat complex in operation because relief may extend in the same proceeding to multiple differing convictions.
Eligibility: At the time of sentencing, the court must inform the defendant, on the record and in writing, that he or she may be eligible to petition the court for an order sealing all case records. § 13-911(E). If the person “has not subsequently been convicted of any other offense except a misdemeanor [traffic violation other than a DUI],” the person may petition the court to seal the record after completion of all terms of the sentence, including payment of all fines, fees and restitution ordered by the court. A waiting period after completion of sentence and discharge applies, whose length depends on the seriousness of the offense: 10 years after discharge for Class 2 and 3 felonies, five years for Class 4, 5 and 6 felonies, three years for a Class 1 misdemeanor, and two years for lower grade misdemeanors. Id. If the person has “a prior historical felony conviction,” an additional five years is tacked on to the specified waiting period. § 13-911(F). A person who “is convicted of two or more offenses may not petition the court to seal the person’s case records until the period of time prescribed in subsection E of this section has passed for each conviction.” § 13-911(G).
While the language of these sections could be clearer, read together (both for what they say and what they don’t say) we think they are most reasonably understood as follows:
- Multiple eligible convictions may be sealed, in a single proceeding or sequentially;
- The prior conviction of a felony (whether or not eligible) does not disqualify an eligible offense from relief but simply extends the applicable waiting period for an additional five years;
- A conviction during the waiting period (other than a non-DUI traffic misdemeanor) restarts the waiting period; and
- There is no limit on the number of occasions on which sealing may be sought.
A variety of mix-and-match scenarios may be imagined in which sealing of several convictions is sought, whether in the same proceeding or sequentially, extending the waiting period because of a prior felony conviction or restarting it where a new conviction occurs midway through it.
Procedure: After the petition has been filed, it is the responsibility of the court clerk to provide the prosecutor with a copy, and the prosecutor must notify a victim who has previously requested such notice. The court may not act on the petition for 30 days after its receipt unless the prosecutor and victim indicate that they have no objection. § 13-911(D).
The court must request the Department of Public Safety (DPS) to prepare a report that includes the petitioner’s entire federal and state arrests and prosecutions, and “any other information that the court requests or that the Department believes will assist the court in making its determination. § 13-911(H). Unless the prosecutor or victim request a hearing, the court “shall grant” the petition if it determines that “granting the petition is in the best interests of the petitioner and the public’s safety.” § 13-911(D). In cases where sealing of a conviction is sought, the Director may charge the petitioner a fee for the investigation, and for the actual sealing if the petition is granted, unless the petition is indigent. §§ 13-911(D) and (H).
If the petition is charged with an offense after the petition is filed, the court may not dispose of the sealing petition until that new matter is resolved. § 13-911(N). If the court denies a request for sealing, the petition may not apply again for three years. § 13-911(L). Appeal of a denial of sealing is permitted based only on an error in determining eligibility. § 13-4033(5).
The effect of a sealing order is set forth in § 13-911(B) and (I). The DPS is responsible for informing all appropriate state and federal law enforcement agencies that the record has been sealed. § 13-911(I). While a sealed record may be used variously in a subsequent prosecution, a person whose record has been sealed may state that they have never been arrested in response to questions on most applications for employment, housing, financial aid or loan applications. A lengthy list of employments related to specific types of offenses are excepted (e.g., a sealed burglary or residential theft conviction must be disclosed in an application for employment that involves entering a dwelling.) § 13-911(I)(5)(a) through (k). The sealed record is generally available to the subject of the record, to the victim (if they have exercised victim’s rights), to enforcement agencies and the courts, and to corrections agencies and child protective agencies, for their official duties. § 13-911(J).
Sealing of non-conviction records
Until enactment of the 2021 law, Arizona was the only state in the country that made no provision for limiting public access to non-conviction records (with a limited exception for wrongful official action described below). When the law becomes effective in 2023, Ariz. Rev. Stat. § 13-911(A)(2) and (3) will authorize petitions to seal uncharged arrests and dismissed and acquitted charges. The process applicable to sealing non-conviction records is essentially the same as the process that applies to conviction records, including the possibility that the prosecutor or victim may request a hearing. The same standards apply as apply to convictions: the court “shall grant” the petition if it determines that “granting the petition is in the best interests of the petitioner and the public’s safety.” § 13-911(D). One difference is that no fees may be charged by DPS for preparation of the record or for sealing of non-conviction records.
Until January 1, 2023, non-conviction records may be sealed only if a person was “wrongfully arrested, indicted or otherwise charged for any crime,” meaning that there was “no legal basis for the arrest, or no legal or factual basis for the charge, or where the parties so stipulate.” State v. Mohajerin, 226 Ariz. 103, 109 (App. 2010), quoting from State v. Franco, 153 Ariz. 424, 426 (App. 1987).
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