Last updated:  October 28, 2022

I.  Loss & restoration of civil/firearms rights

A.  Restoration for first felony offenses

Conviction of a felony suspends the right to vote, to hold office, and to sit on a jury. Ariz. Const. art. VII, § 2(C); Ariz. Rev. Stat. §§ 13-904(A)(1)-(3); 16-101(A)(5); 21-201(3). See also Ariz. Rev. Stat. § 14-5651(C)(3) (fiduciary, including court-appointed guardians and personal representatives unrelated to a decedent).  The laws relating to restoration of civil rights were substantially revised in 2019 by HB 2080.  For a first felony offense (state or federal), civil rights, other than those pertaining to firearms, are automatically restored upon completion of the term of probation, or upon an unconditional discharge from imprisonment, and upon payment of any restitution — though payment of other court debt is no longer required.  Ariz. Rev. Stat. § 13-907.  A further requirement to pay fines as a condition of restoration was repealed by HB 2080, and those who have not paid restitution may avail themselves of the judicial restoration procedure under § 13-908 (below).¹

B.  Restoration for repeat offenses 

A person who has previously been convicted of a felony or who has not paid any victim restitution that was imposed may apply to the superior court to have their civil rights restored “on final discharge.”  Ariz. Rev. Stat. § 13-908(A).  “Final discharge” is defined as “the completion of probation or the receipt of an absolute discharge from the Arizona Department of Corrections.”  Id. § 13-908(H).  “A person who has received an absolute discharge from imprisonment may file an application for restoration of civil rights no sooner than two years from the date of the person’s absolute discharge.”  § 13-908(A).  The restoration of civil rights is in the discretion of the judicial officer, but the court must put its reasons for denial in writing.  § 13-906(D).  No fee may be charged.  § 13-908(B).  See also Ariz. R. Crim. P. 29.1. (“Prior to his or her absolute discharge, a probationer shall receive from his or her probation officer, or the court if there is no probation officer, a written notice of the opportunity to have his or her civil rights restored, to withdraw his or her plea of guilty or no contest, or to vacate his or her conviction.”).  Rights may also be regained through a judicial set-aside under § 13-9o5.  See Part III below. 

A person whose civil rights were lost by virtue of a federal felony conviction, and is not eligible for automatic reenfranchisement, may apply for restoration of civil rights to the superior court in his county of residence. § 13-908(C) and (E).  Restoration of rights under these sections is discretionary with the court, though the court is required to give reasons for a denial.  § 13-906(D).  There are no explicit provisions in Arizona law for restoration of any rights under Arizona law that may have been lost as a result of a felony conviction in another state, so that out-of-state recidivists apparently must seek restoration of civil rights in the jurisdiction of their conviction.  See Flynn Patrick Carey, Extending the Home Court Advantage: A Call to Update the Arizona Civil Rights Restoration Scheme, 48 Az. L. Rev. 1129 (2006); cf. State v. Prince, 226 Ariz. 516, 530, 250 P.3d 1145, 1159 (2011) (“a juror convicted of an out-of-state felony whose civil rights have not been restored is disqualified from jury service by § 21-201(3)”). 

C.  Firearms restoration

Conviction of a felony suspends “[t]he right to possess a gun or firearm.” Ariz. Rev. Stat. § 13-904(A)(5).²  The provisions for restoration of civil rights “do[] not apply to a person’s right to possess weapons as defined in Ariz. Rev. Stat. § 13-3101,” but restoration of firearms rights is addressed in § 13-910, as added in 2019 by HB 2080.  Persons convicted of a non-serious felony may apply for restoration of firearms rights two years after discharge, while persons convicted of a “serious offense” (generally common law felonies, crimes against children, and sexual offenses) must wait ten years for restoration.  § 13-910(A).  Persons convicted of a “dangerous offense” (namely the discharge or use of a deadly weapon or the intentional infliction of serious physical injury upon another) are ineligible for judicial restoration, id., and may regain firearm rights only by pardon, and only if the pardon document so specifies.  See Ariz. Admin. Code § R5-4-101(6). 

Set-aside:  Persons convicted of non-serious felonies may also regain firearms rights from the court through a set-aside upon final discharge.  See § 13-905(J) and Part III, below.  Restoration of firearms rights is mandatory with a set-aside, which has discouraged courts from granting them. 

Persons with out-of-state convictions must seek relief from firearms disabilities in the jurisdiction of their conviction. See Carey, Extending the Home Court Advantage: A Call to Update the Arizona Civil Rights Restoration Scheme, supra, 48 Az. L. Rev. at 1148-49.  Persons with federal convictions may regain their firearms rights only through a presidential pardon.  See Beecham v. U.S., 511 U.S. 368 (1994).  

II.  Pardon policy & practice 

A.  Authority

The governor has the authority to grant pardons “after conviction,” except in cases of treason or impeachment, “upon such conditions and with such restrictions and limitations as may be provided by law.” See Ariz. Const. art. V, § 5. The governor may not act except upon a favorable recommendation from the Board of Executive Clemency. See Ariz. Rev. Stat. § 31-402(A) (“no reprieve, commutation or pardon may be granted by the governor unless it has first been recommended by the [Board of Executive Clemency]”). The governor is required to publish reasons for each grant, and must report to legislature at the beginning of every regular session.  Ariz. Rev. Stat. §§ 31-445, -446.

B.  Administration

The Board of Executive Clemency consists of five persons appointed by the Governor to five-year terms. Ariz. Rev. Stat. § 31-401 (effective September 28, 2012, governor will not be required to appoint a selection committee to develop candidate lists for vacancies on the Board).  Chairperson selected by Governor. Id. § 31-401(F). Board members serve on a full-time basis, and must meet at least once a month. Id. § 31-401(B), (H). Three members constitute a quorum, except that the chairperson may designate two as a quorum. Id. § 31-401(I). The powers and duties of the Board are set forth in § 31-402. The Board’s website is at https://boec.az.gov/.

C.  Eligibility

“Unless prohibited by law, an individual who was convicted of an Arizona felony offense may apply for a pardon.” Ariz. Admin. Code § R5-4-201(A). Persons convicted under federal law or convicted under the law of another state are ineligible for a Governor’s pardon. See id.

D.  Effect

A state pardon “absolves an individual of the legal consequences of a crime for which the individual was convicted.” Ariz. Admin. Code § R5-4-101(6); 68 Ariz. Op. Att’y Gen. 17 (Aug. 19, 1968). In addition, a pardon is “an honor and a privilege that is reserved for those that have demonstrated crime free behavior for a period following a criminal conviction.” A pardon relieves most remaining legal disabilities and “sends a very powerful message to society that you have led a useful, productive, and law-abiding life following your conviction.”  68 Ariz. Op. Att’y Gen. 17.  Pardon restores firearms rights only if specified in the pardon document (but firearms rights may be restored by the court, see Part I).

E.  Process

Board is required to meet at least once a month, and considers paroles as well as full pardons. Ariz. Rev. Stat § 31-401(H).  However, no minutes of meetings have been posted on its site since December 2017.   

According to published regulations, an eligible individual “shall submit to the Board a completed application form obtained from the Board.” Ariz. Admin. Code § R5-4-201(B). The application form can be downloaded at https://boec.az.gov/sites/default/files/documents/files/Completed%20Pardon%20Application%20fillable%20rev.%20Jan.%209%202015.pdf. The Board, at its discretion, may require the applicant to submit additional information and documents. Id. § R5-4- 201(C). Prisoners may also apply for a pardon, and for such applications the Board will request that Arizona’s Department of Corrections review the application and verify whether the prisoner is eligible to apply. Id. § R5-4-201(D). Ariz. Rev. Stat. § 31-442 requires applicant to give notice of intention to apply for pardon to county attorney ten days before Board is to act, and (“unless dispensed with by the governor”) publication of that notice in a paper for a 30-day period in county of conviction.  An earlier version of the Board’s website set forth the standards considered by the Board (including reasons for applying, efforts toward rehabilitation, and whether a person has been granted a set-aside by the court). It also stated that the pardon process “can be a lengthy process that takes effort on your part.”

Hearing:  “After receiving a complete application from an eligible applicant, the Board shall schedule a hearing and provide advanced written notice to the applicant of the date and location of the hearing.” Ariz. Admin. Code § R5-4-201(E). Board may require court of conviction and county attorney to provide facts proved at trial and any other facts that bear on propriety of granting or refusing pardon. Ariz. Rev. Stat § 31-441.

Under its regulations, Board is required to notify applicant within 10 work days of decision to deny or affirm recommendation for pardon to Governor.  Ariz. Admin. Code § R5-4-201(E).  “If the Board votes to recommend a pardon, the Presiding Officer shall designate a Board member to prepare and send to the governor a letter of recommendation.  The letter of recommendation may include a statement of individual Board members’ reasons for voting to recommend a pardon. Board members who voted not to recommend a pardon may prepare and send letters of dissent to the governor.” Id. § R5-4-201(G). If denied by Board or governor, applicant may not reapply for three years. Id. § R5-4-201(I). 

F.  Frequency of Grants

For many years, Arizona governors have  granted few pardons, and increasingly the Board recommends very few.  Governor Doug Ducey granted only one pardon in his first term (2014-2018), to a man convicted in the 1970s of stealing a motorcycle who was seeking a pardon so that he could possess a firearm in Nevada.  Governor Jan Brewer (2009-2014) granted 12 pardons during her six year tenure, all during her final month in office.   From 1988 through 2009, Arizona governors issued a total of 55 pardons.  The history of clemency in Arizona, including its use to commute prison sentences, is ably and thoroughly discussed by Bob Ortega in Arizona Prisoners Rarely Granted Clemency, http://www.azcentral.com/news/articles/2012/04/12/20120412arizona-prison-clemency.html. During their terms both Ducey and Brewer granted several commutations of sentence, almost all to prisoners close to death.³ 

G.  Contact 

Executive Director
Arizona Board of Executive Clemency
1645 West Jefferson, Suite 101
Phoenix, AZ 85007
Tel: (602) 542-5656
Fax: (602) 542-5680
http://www.azboec.gov/

III.  Expungement, sealing & other record relief

A. Sealing of felony and misdemeanor convictions

In 2021, Arizona for the first time authorized its courts to seal conviction records.  See SB1294, enacting Ariz. Rev. Stat. § 13-911.   The same law authorized sealing of uncharged arrests and dismissed and acquitted charge, also for the first time (see Section E, below).  All but Class 1 felonies, and certain violent and sexual offenses, are eligible for sealing.  See § 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. The act is effective from and after December 31, 2022. 

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 the person completes all of the terms and conditions of the person’s sentence, including paying all fines, fees and restitution that are ordered by the court.” A waiting period after completion of sentence 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.

Payment of court debt:  Arizona’s new sealing law—enacted in 2021 and effective in 2023—requires that “the person completes all of the terms and conditions of the person’s sentence, including paying all fines, fees and restitution that are ordered by the court,” in order to petition for sealing. See Ariz. Rev. Stat. § 13-911(E). 

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 record of 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 an seal “all case records” 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). 

B.  Judicial set-aside

Arizona law has for many years authorized its courts to “set aside” or “vacate” most state convictions,  and to dismiss the charges upon “fulfillment of the conditions of probation or sentence and discharge by the court.” Ariz. Rev. Stat. § 13-905(A).  However, no sealing is authorized.  Set-aside is unavailable to anyone convicted of a criminal offense involving the infliction of serious physical injury, the use of a deadly weapon or dangerous instrument, a victim less than 15 years old, a requirement that the person register under § 13-3821 or where there has been a finding of sexual motivation under § 13-118. Id. § 13-905(K). In 2021, Arizona enacted SB 1249, which eliminated the exclusion of certain traffic offenses from eligibility for set-aside. 

Payment of court debt (LFOs):  It is not clear if all court debt must be paid in order to petition for set-aside, but among the factors that the court may consider in deciding whether to grant relief are “the victim’s input and the status of victim restitution, if any.” Id. § 13-905(C)(4). ⁴

Set-aside for human trafficking victims:  Prostitution convictions of victims of human trafficking may be vacated if the court finds by clear and convincing evidence that the person’s participation in the offense was a direct result of being a victim of sex trafficking pursuant to § 13-1307.  The conviction does not serve as prior, and need not be reported unless a fingerprint background check is authorized.  No hearing unless prosecutor objects.   § 13-909.

Effect of set-aside: Set-aside relief restores all rights and generally releases the person “from all penalties and disabilities resulting from the conviction.” See Ariz. Rev. Stat. § 13-905(D). This includes firearms rights. § 13-905(D), (J).⁵  However, set-aside does not seal or expunge the conviction, and does not relieve the person from having to report the conviction if asked. Id. § 13-905; see also Russell v. Royal Maccabees Life Ins. Co., 974 P.2d 443, 449 (Ariz. Ct. App. 1999) (finding expungement does not obliterate the fact of conviction and person must report conviction in application for insurance). The fact that a conviction is set aside or vacated does not release the person from certain motor vehicle restrictions, if applicable, and the conviction may still be used as a predicate offense in any subsequent prosecution. Ariz. Rev. Stat. § 13-905(D). Set-aside does not relieve duty to register as sex-offender. See Ariz. Rev. Stat. § 13-3821; Ariz. Op. Atty. Gen. No. I00- 0300, 2000 WL 33156113 (Ariz. A.G. Dec. 18, 2000).   In addition, HB 2312 specifies that the set-aside conviction may be used for certain purposes, including being admissible as a conviction or prior, alleged as an element of an offense, or used by the Department of Transportation to enforce certain statutes. Ariz. Rev. Stat. § 13-905(E).

Procedures: In March 2018, Arizona enacted a series of provisions that elaborate the procedures for applying for set-aside.  HB 2312.  First, fees may no longer be charged for an application to set aside.  Id.  § 13-905(B).  Second, a person may now apply to any court, instead of only to the sentencing court.  Id.  § 13-905(A).  Third, a person must be informed at sentencing of the right to seek a set aside (previously it was at discharge).  Id.  Fourth, for the first time courts are required to consider several specific factors in making a decision: (1) the nature and circumstances of the offense; (2) the applicant’s compliance with conditions of probation; (3) the sentence imposed and any correctional rules or regulations; (4) any prior or subsequent convictions; (4) the victim’s input and the status of victim restitution, if any; (5) the time elapsed since the completion of the sentence; (6) the applicant’s age at time of the conviction; and (7) any other relevant factor. Id. § 13-905(B). Fifth, a victim has a right to be present and heard at any proceeding regarding the application for set aside. Id. § 13-905(I). Sixth, a court that denies an application must state its reasons in writing and on the record. Id. § 13- 905(H). Seventh, if a conviction is set aside, the court clerk must notify the Department of Public Safety, which must update the person’s criminal history with an annotation that the conviction has been set aside. Id. § 13-905(F).

C.  Certificate of Second Chance

In 2021, Arizona enacted HB 2067, which created a new judicial certificate of relief: a Certificate of Second Chance, effective Sept. 29, 2021.

Eligibility and process:  A court is authorized to issue a Certificate of Second Chance to a person whose judgment of guilt is set-aside under specific conditions. See Ariz. Rev. Stat. § 13-905(A), (J) through (N). First, if a court grants an application to set aside a judgment of guilt, the order must include a certificate if the person has not previously received a certificate and any of the following is true: (1) the person was convicted of a misdemeanor; (2) the person was convicted of a class 4, 5, or 6 felony and at least two years have passed since the person fulfilled the conditions of probation or sentence; or (3) the person was convicted of a class 2 or 3 felony and at least five years have passed since the person fulfilled the conditions of probation or sentence. If the court does not issue a certificate when the person’s conviction is set aside, the person may apply for a certificate after satisfying the time periods described above. If a victim has requested “postconviction notice” the attorney for the state must provide the victim with notice of the application. See HB 2067 (2021).

Effect:  The Certificate of Second Chance, in addition to being annotated in the person’s criminal history, has the following effects: (1) “releases the person from all barriers and disabilities in obtaining an occupational license issued under Title 32 that resulted from the conviction if the person is otherwise qualified,” § 13-905(M)(1); (2) provides an employer of the person the protections of § 12-558.03(C) (limited negligent hiring liability); (3) provides a person or entity that provides housing to the person with the protections limiting the introduction of evidence that are provided to an employer under § 12-558.03(B); and (4) “is not a recommendation or sponsorship for or a promotion of the person who possesses the certificate of second chance when applying for an occupational license, employment or housing.”

D.  Marijuana expungement

In the November 2020 election, Arizona voters approved a proposition to legalize marijuana, which included a provision for expungement of certain marijuana-related records. Effective July 12, 2021, courts must, upon petition, expunge arrests, charges, and convictions for the following marijuana offenses: (1) possessing, consuming or transporting 2.5 ounces or less containing no more than 12.5 grams of marijuana concentrate; (2) possessing, transporting, cultivating or processing not more than 6 plants at an individual’s primary residence for personal use; and (3) possessing, using, or transporting paraphernalia.  Proposition 207 (2020), adding Ariz. Rev. Stat. § 36-2862.  The prosecutor has 30 days to respond to a petition, and may request a hearing, but the court must grant the petition unless the prosecutor establishes by clear and convincing evidence that the petitioner is not eligible.  § 36-2862(a)(3).  The Arizona Supreme Court has created a website with forms and other information: https://www.azcourts.gov/prop207, as have some County Attorney’s offices, such as the Pima County Attorney’s Office, which will file petitions on behalf of individuals who apply through a web form and are determined to be eligible: https://www.pcao.pima.gov/prop207/.  Only eligible charges or arrests will be expunged, with the result that parts of a file of an eligible conviction may remain unsealed (e.g., a charges that are not eligible that may have been reduced pursuant to a plea).

E.  Sealing of non-conviction records

In 2021, by the same law that authorized sealing of conviction records (see Section IIIA, above), Arizona for the first time authorized sealing of “all case records” related to uncharged arrests and dismissed and acquitted charges. See SB1294, enacting Ariz. Rev. Stat. § 13-911(A)(2) and (3).  The law is effective on December 31, 2022. The court may not act on a petition for 30 days unless the prosecutor and victim indicate no objection, and the court may grant without a hearing unless the prosecutor or victim requests 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).  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).

F.  Diversion and deferred adjudication

      County prosecutor diversion

County attorneys are authorized to divert or defer a person’s prosecution before guilty plea or before trial.  See Ariz. Rev. Stat. § 11-361. Prior to enactment of SB1294 (above) no sealing was authorized.

In 2021, this law was amended to strike a series of restrictions on the availability of this disposition based on an individual’s prior record: prior conviction of a specified “serious offense,” a “dangerous offense,” or a “dangerous crime against children”; or prior conviction of three or more convictions for personal possession of a controlled substance or drug paraphernalia. See HB 2186.

     Drug court diversion, deferred adjudication 

Courts are authorized to establish drug court programs, where people may be offered diversion prior to a guilty plea upon the recommendation of the prosecutor.  See Ariz. Rev. Stat. § 13-3422.  If a person admitted to the program pleads or is found guilty, the court may withhold judgment and place the person on probation with conditions. If the person successfully completes the probation conditions, the charges are dismissed, but the record is not sealed.  If the person fails to comply with the terms of participation, they may be found guilty and sentenced in accordance with law.

       Designation of class 6 felonies as misdemeanors

Unless a person has previously been convicted of at least two felonies, a class 6 felony offense not involving a dangerous offense will be deemed a class 1 misdemeanor if either: (1) the prosecutor designates it as a misdemeanor in an information or complaint; or (2) the court, considering the “nature and circumstances of the crime” and the “history and character of the defendant,” is “of the opinion that it would be unduly harsh to sentence the defendant for a felony.” Ariz. Rev. Stat. § 13-604.

Alternatively, the court may place the defendant on probation and refrain from designating the offense until probation is terminated, with the offense being treated as a felony until the court actually designates it as a misdemeanor.  Id.  Effective, June 30, 2022, however, the offense will be treated as a misdemeanor until the court actually designates it, except it will be treated as a felony for the following specific purposes: placing the defendant on felony probation, collecting DNA, determining the right to possess a firearm, or being used as a prior felony conviction, for impeachment purposes in a subsequent trial, or to enhance a sentence. See HB 2162 (2021).

Also effective June 30, 2022, upon the defendant’s successful fulfillment of the conditions of probation, the court will be required to designate the offense as a misdemeanor, even if the defendant still owes a monetary obligation, unless the defendant owes victim restitution or has willfully failed to pay the monetary obligation. See id.

G.  Juvenile records

Individuals 18 years of age and older may apply to have many juvenile delinquency or incorrigibility adjudications set aside upon discharge from probation or absolute discharge unless the individual has a subsequent criminal conviction, criminal proceedings pending, has not successfully completed terms of probation, has not been discharged from department of juvenile corrections upon completion of individual treatment plan, or has not paid all restitution or assessments. Ariz. Rev. Stat. § 8-348 (A), (C). This does not apply if the adjudication involved any of the following: (1) infliction of serious injury; (2) the use or exhibition of a deadly weapon or dangerous instrument; (3) sexual offenses; (4) driving under the influence or with a suspended license; or (5) a civil traffic violation. Id. § 8-348 (D).  May be used as a predicate in subsequent criminal proceeding.  Id. §§ 8-207, 13-501. 

Set-aside “relieves all penalties and disabilities from the adjudication,” with exceptions for those imposed by the Department of Transportation.  Records of juvenile adjudications can in some circumstances be destroyed upon reaching age 18 or 25, depending upon the type of offense conduct.  § 8-349. 

IV.  Criminal record in licensing & employment

A. Public employment

A person may not be disqualified from public employment “solely because of a prior conviction for a felony or misdemeanor.” Ariz. Rev. Stat. § 13-904(E).⁶  A person may be disqualified from public employment by reason of conviction only if “the offense has a reasonable relationship to the functions of the employment sought.” Id.  Subsection (E) does not apply to positions in law enforcement. Id. § 13-904(F). Any complaints concerning a violation of this subsection shall be adjudicated in accordance with the Arizona administrative procedures act, including judicial review. Id. § 13-904(G).  See also Rehabilitating the Ex-felon: Impact of Arizona’s pardons and civil rights restoration statutes, Law & Soc. Ord., 1971, p. 793.  No analogous provisions governing private employment.

Ban-the-box in state hiring

In November 2017, Governor Doug Ducey issued Executive Order 2017-7 (https://azgovernor.gov/sites/default/files/related-docs/boxeo.pdf), limiting inquiries into criminal history in state hiring.  The Order requires the Department of Administration to “establish hiring procedures to be used by all State Agencies” that prohibit asking about criminal records during the “initial stage of an application process,” and prohibit disqualifying an applicant from receiving an interview because of a criminal record.  “State Agency” is defined at Ariz. Rev. State. § 41-741(15) as

The Order does not apply to, “(i) state governmental units that are not included in A.R.S. § 41-741(15) and (ii) one or more offices headed by one or more statewide elected officials.”  However, those excluded agencies “are encouraged, along with private employers operating in Arizona, to adopt similar Second Chance Box Policies.” The Order also does not apply to positions “where a state or federal law prohibits a person from holding a job due to prior criminal conduct.”

B. Occupational licensing standards and procedures

In April 2018, a comprehensive new occupational licensing scheme was enacted for most Arizona licensing boards, repealing the previously applicable standards for licensure in Ariz. Rev. Stat. § 13-904(E).  See SB 1436.⁷ The law has been further amended several times, each time extending greater protections to applicants for licensure who have a criminal record.

Preliminary determination:  Under Ariz. Rev. Stat. § 41-1093.04, applicants may petition licensing agencies for a preliminary determination whether a prior conviction will disqualify the person from licensure:  applicants “may petition an agency at any time, including before obtaining any required education or experience, taking any examination or paying any fee for a determination of whether the person’s criminal record disqualifies the person from obtaining a license, permit, certificate or other state recognition.” § 41-1093.04(A). Importantly, agencies are required to issue a written determination on the petition within 90 days of receipt that must include “findings of fact and conclusions of law.” Ariz. Rev. Stat. § 41-1093.04(E). Agencies “may” advise an applicant on how to remedy a likely disqualification, including filing an appeal or submitting a new petition to the agency within two years. § 41-1093.04(F).  Note that this preliminary determination is not binding on the agency, as in some states. 

Standards for disqualification  As further modified in 2019 by HB 2660 and in 2021 by HB 2787, standards for disqualification are set forth in § 41-1093.04(D), and require an agency to conclude both (1) that there is an important state interest in “protecting public safety that is superior to the person’s right” to licensure; and (2) that the person was convicted within the past seven years of a felony that has not been set-aside, including any offense the agency is specifically required to consider by law, but excluding certain serious and dangerous crimes.  If the person is convicted of an additional disqualifying offense and the agency has yet to issue the license, the agency must rescind the determination. § 41-1093.04(G).

As amended in 2021, an agency may disqualify a person based on their criminal record only if the conviction “specifically and directly relates to the duties and responsibilities of the occupation” (except for offenses involving moral turpitude defined to include serious and violent offenses) and “the person, based on the nature of the specific offense that the person was convicted of and the person’s current circumstances, including the passage of time since commission of the crime, “is more likely to reoffend by virtue of having” the license than not. § 41-1093.04(E).

The 2021 amendments provided that certain records may not be considered: non-conviction records, including participation in a diversion program, a conviction that was sealed, expunged or pardoned; a juvenile adjudication; and a non-violent misdemeanor.§ 41-1093.04(F).  Also in 2021 drug offenses were added to this list, except for licenses involving health and education. § 41-1093.06, amended by HB2319.

Existing laws that establish standards for the issuance of licenses are variously worded, but the newer general standard will presumably prevail in case of inconsistency, if the license is not exempt.⁸

Exemptions: Under the 2018 law, certain licenses are exempt from these limitations, law enforcement officers, security guards or private investigators; certifications required under the education title; statutory requirements for obtaining a fingerprint clearance card; and credentials established by an interstate compact. § 41-1093.04(H).  

Procedure:  The agency shall issue a determination on the petition within ninety days after the agency receives the petition. The determination on the petition must be in writing and include findings of fact and conclusions of law; and, effective in 2021,the grounds and reasons for any disqualification. § 41-1093.04(G).

Accountability: Beginning in 2019, agencies are required to submit annual reports to the Governor and the Legislature that contain the following information for the previous year: the number of petitions received from persons with a criminal record for a preliminary determination; the number of petitions granted and denied, and the types of offenses involved in each category.  § 41-1093.04(I).

Provisional licenses 

In May 2017, HB 2290 authorized licensing authorities to issue regular or provisional licenses to “otherwise qualified” applicants who have been convicted of an offense. See Ariz. Rev. Stat. § 32-4701(A). Provisional licenses are valid for up to one year and may be conditioned on certain terms by the licensing authority, such as required supervision by another licensee. See § 32-4701(B), (G), (H). Certain convictions bar applicants from receiving a provisional license, such as violent crimes, fraudulent crimes, and sexual offenses. See § 32-4701(K)(1). Additionally, provisional licenses cannot be issued under certain circumstances, including (1) when an occupation involves supervising vulnerable adults or children, (2) when the applicant was convicted of committing the offense in the course of performing the duties of the occupation or a substantially similar occupation, or (3) when the applicant is a repetitive offender as described in § 13-703. See § 32-4701(K)(2)-(4). Provisional licenses may be revoked if the provisional licensee is charged with a new felony, has community supervision revoked, or violates any law or rule that governs the occupation’s practice. See § 32-4701(C).  The licensing authority may in its discretion decide whether to reissue a license to an applicant who has had a provisional license revoked. See § 32-4701(D).

If a provisional licensee was convicted of burglary, trespass or robbery within the last 10 years, and if the occupation is one in which a licensee regularly enters private residences, the provisional license must contain a condition that the provisional licensee may only work under the direct supervision of a licensee who has no criminal record.  If the offense occurred more than 10 years ago, this condition is discretionary. A regular license may also contain this condition.  See § 32-4701(H).

Good moral character in miscellaneous business and professional licenses:  In 2022, HB2612 removed “good moral character” and similar language from several business and professional licensing schemes, including livestock slaughtering, liquor licenses, horseracing and other wagering enterprises, acquisition of banks and trusts, mortgage origination, contractors, health care facility operators and certain health care professionals, school bus operators, etc. 

 

 

---

1. The requirement to pay court debt before regaining the right to vote was challenged unsuccessfully under the 14th and 24th Amendments in Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010). In Harvey, the Ninth Circuit upheld the statute finding it neither violated the U.S. Constitution’s Equal Protection Clause, the bar against poll taxes in the 24th Amendment, or the Privileges or Immunities Clause nor the Arizona Constitution’s Privileges or Immunities and Free and Equal Elections Clauses.  Id. at 1078-80.  The various constitutional issues are raised in a challenge to the Florida law making re-enfranchisement dependent upon satisfaction of all court debt.  See Jones v. DeSantis, Case 4:19-cv-00300-RH-MJF (preliminary injunction issued, October 18, 20190).  For a comprehensive examination of the way in which the inability to pay court-ordered economic sanctions—fines, fees, surcharges, and restitution—may prevent people with felony convictions from voting, see Beth Colgan, Wealth-Based Penal Disenfranchisement, 72 Vand. L. Rev. 55 (2019);  see also Erika Wood & Neema Trevedi, The Modern Day Poll Tax: How Economic Sanctions Block Access to the Polls, 41 Clearinghouse Rev., 30 (May-June 2007), available at http://brennan.3cdn.net/c82128f55efee5440d_g8m6btpex.pdf. 
2. Prior to 1994, Arizona law suspended firearms rights only for persons “convicted . . . of a felony involving violence or possession and use of a deadly weapon or dangerous instrument and whose civil rights have not been restored.” See Ariz. Rev. Stat. §§ 13-904, 13-3101 (1991). In 1994, Section 13-904 was amended to add “the right to possess a gun or firearm” to the list of civil rights automatically suspended by a felony conviction. The stricter 1994 law, which did not specifically address the issue of retroactivity, has been held by Arizona state courts to apply to persons who were convicted before its passage but whose right to restoration vested after its passage.  See State v. Olvera, 191 Ariz. 75, 952 P.2d 313 (Ariz. Ct.App. 1997) (finding amendment to Ariz. Rev. Stat. § 13-904 merely changed defendant’s status to a “prohibited possessor felon” under Ariz. Rev. Stat. § 13-3101 and did not amount to punishment for earlier convictions, therefore defendant’s right to be free from ex post facto laws was not violated); State v. Gallegos, No. 1 CA-CR 07-0633, 2008 WL 3892039 (Ariz. Ct. App. May 13, 2008) (finding that amendments to Ariz. Rev. Stat. §§ 13-904, 13-3101 applied to defendant because his right to apply for restoration did not vest until he completed his probation, which occurred after the 1994 amendments).
3.   In 2003 and 2004, the Board reviewed over 400 commutation applications each year, and forwarded 40 and 32 petitions respectively to the Governor’s Office with favorable recommendations. The Governor approved three commutations in 2003 and one in 2004.  See generally Amanda J. Crawford and Ryan Konig, Clemency voice goes unheeded: Board’s advice on sentences largely ignored by governor, The Arizona Republic, May 22, 2005.  Since 1988, no Arizona governor has commuted a death sentence.  In the 31 executions since 1992, the Board has never recommended a commutation.  Ortega, supra.  Up until 1993, fewer than 60 inmates a year, on average, applied for commutation. See id.  In 1993, Arizona adopted so-called “truth in sentencing” laws, which more or less abolished parole. Under these laws, people must serve at least 85% of their sentence before becoming eligible for community supervision. Some felonies require 100% of the sentence be served. Along with mandatory sentencing minimums, these laws have made commutation the only avenue for most to seek a reduced sentence. See id. As a result, in recent years commutation applications have skyrocketed—applications soared to more than 1,200 in 2005.  Id.  From April 1988 to May 2012, only 104 commutations were granted by Arizona governors.  Id.  Of the 24 commutations granted by Governor Brewer, 19 were “imminent danger or death” cases. Id. Board continues to recommend between 6% and 12% favorably despite the governor’s continued declination to grant more than a handful. Source: Arizona Board of Executive Clemency. Note that “any recommendation for commutation that is made unanimously by the members present and voting and that is not acted on by the governor within ninety days after the board submits its recommendation to the governor automatically becomes effective.” Ariz. Rev. Stat. § 31-402(D). 
4. Payment of fines, fees and restitution may be imposed as a condition of probation, and willful failure to pay may be a basis for revocation.§§ 13-808(B), 810.
5. The fact that a set-aside necessarily restores firearms rights to anyone not convicted of a serious offense has resulted in fewer grants than otherwise.
6.   Section 13-904(E) was revised in 2018 to delete provisions that applied to occupational licenses, at the same time rigorous standards were enacted to apply to licensure. 
7.  The provisions of §13-904(E) that applied to licensure were repealed by SB 1436, so that that law now applies only to public employment.  For caselaw under that prior provision, see e.g., Curtis v. Richardson, 212 Ariz. 308, 131 P. 3d 480 (Ariz. Ct. App. 2006) (felony conviction for possession of illegal drugs was “reasonably related” to the functions of a real estate salesperson, since the real estate industry places heavy reliance not only on an agent’s competence, honesty, and financial integrity, but also on how the person represents the industry).
8.  See, e.g., Cosmetology, Ariz. Rev. Stat. § 32-572(B) (“conviction of a crime or act shall not be a cause of refusal to issue or renew a license unless the crime or act is substantially related to the qualifications, functions or duties of the license for which application is made”); Nursing, id. § 32-1632(2) (“absolute discharge from the sentences for all felony convictions five or more years before the date of filing an application”); Physician’s Assistant, id. § 32- 2507(A)(1), (2) (requiring public profile describing conviction of a felony or a misdemeanor, or charges to which licensee pled no contest, involving moral turpitude within the last five years); Real Estate, id. § 32-2153(B) (denial of license for “a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense”); Pest Control, id. § 32-2312(D) (“felony conviction may demonstrate a lack of good moral character”); Funeral Services, id. § 32-1301(27)(a), (b) (“Good moral character” means that a person has not been convicted of a class 1 or 2 felony, or “has not, within five years of application for licensure or registration, been convicted of a felony or misdemeanor if the offense has a reasonable relationship to the person’s proposed area of licensure or registration”). See also Pharmacists, Ariz. Rev. Stat. § 32-1927(A)(1) (under 2005 amendment, specific reference to conviction was replaced by “unprofessional conduct” as basis for discipline; however, § 32-1901.01(B)(8) defines “unprofessional conduct” to include “[c]omitting a felony, whether or not involving moral turpitude, or a misdemeanor involving moral turpitude or any drug related offense”).