A.R.S. § 13-905: Setting Aside Judgement of Convicted Person on Discharge

Once a person has been convicted of a criminal offense, one of the first things they think of is how and when can they get this conviction off their record. Having heard of the word “expungement,” they seek to know whether they themselves can have their conviction expunged. Unfortunately, Arizona does not have formal expungement, but has a “set aside” process where the conviction is set aside and the person is released from all penalties and disabilities of the conviction.

The Set Aside Statute

The statute that details the process of setting aside a conviction is found in Arizona Statute § 13-905 and states:

A. Except as provided in subsection K of this section, every person convicted of a criminal offense, on fulfillment of the conditions of probation or sentence and discharge by the court, may apply to the court to have the judgment of guilt set aside. The convicted person shall be informed of this right at the time of sentencing.

The offenses found in subsection K that are excluded from the set aside statute are: (1) designated dangerous offenses, which involve serious bodily injury or use dangerous instruments or displaying a deadly weapon, (2) offenses that require the individual to register on the sex offender registry, (3) offenses where there has been a finding of sexual motivation, (4) a felony offense where the victim is under 15 years old, or (5) the offense of driving on a suspended or cancelled license, or an offense that involves any local ordinance relating to stopping, standing or operation of a vehicle.

Because Driving Under the Influence (DUI) is not one of the excluded offenses, an individual can apply to have their DUI conviction set aside. An individual can seek the set aside once they have completed any probation ordered and paid all the fines, fees and other court requirements, To get the conviction set aside, the person, the person’s attorney, or the person’s probation officer may apply to set aside the judgement. The statute then lists the factors that will be considered in determining whether the set-aside application will be granted or not:

C. The court shall consider the following factors when determining whether to set aside the conviction:

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.

The statute continues to read:

D. 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 except those imposed by:

1. The department of transportation
2. The game and fish commission

Practical Effect of the Set Aside

As the statute states, “the court shall set aside the judgement of guilt, dismiss the complaint, information or indictment and order that the person be released from all penalties and disabilities resulting from the conviction.” This does not mean that the conviction will be erased from the record or expunged. When employers, landlords, or other parties do a background check on the individual, the conviction will still show up. However, instead of just showing a conviction on the record, it will state the conviction was set aside. The convicted individual would still need to disclose the offense if they are asked if they have had any prior convictions during any job interview or application process but will be able to state that the conviction was set aside.

Obtaining a set aside is still important despite the apparent disadvantages. A set aside conviction shows that a judge saw that an individual has made sufficient changes and progress after a prior mistake. Most employers are aware of the set aside designation and will look upon it positively if it were to come up.

DUI’s and the Set Aside

Unfortunately, because the way the laws are in Arizona, a DUI conviction will always be on a person’s record and will not be able to be removed. However, the set aside process does have various benefits that are worth the time to seek it. Doing so allows the person to declare to future employers and other parties that the conviction has been set aside and that they have been released from all obligations and penalties resulting from the offense. An important part of the statute that relates to DUI’s reads:

E. A conviction that is set aside may be:

1. Used as a conviction if the conviction would be admissible had it not been set aside.
2. Alleged as an element of an offense.
3. Used as a prior conviction.
4. Pleaded and proved in any subsequent prosecution of the person by this state or any political subdivision of this state for any offense.

This section is important because these State, in any subsequent DUI case, will be able to use a set-aside DUI conviction for charging or sentencing. If the subsequent DUI was committed within 84 months, or 7 years, of the previous DUI, the driver will receive harsher penalties even if the prior conviction was set aside.

For misdemeanor DUI’s, or regular, extreme, or super extreme offenses, the individual will receive more jail time, greater fines, and harsher penalties if it is their second DUI committed within 84-months of the date of the prior offense. If it is the driver’s 3rd DUI committed within 84-months of the first offense, the driver will be charged with Aggravated DUI, which is a class 4 felony. This carries a mandatory 4-month minimum prison term, greater penalties, and a felony conviction on record.

So, even if a driver has a DUI conviction set aside, that conviction can be used against him for up to 7 years after the date he committed the first offense to charge him with a second or subsequent DUI violation. Additionally, even if the set-aside DUI conviction falls outside the 7-year period and the driver commits a subsequent DUI, it is likely the prosecution will still use the prior conviction to enhance sentencing to try to show the driver has not learned his lesson. While the set aside can have great benefits as a person seeks to reestablish their life and move on from a mistake, it is important to be aware that although set aside, these convictions can still be used in court for a criminal case.

The process to set aside a conviction can be confusing and stressful. Having the right attorney to help you understand the process and file the application with you is key to success. At Phoenix DUI Lawyer, you have a dedicated team that has successfully set-aside convictions for a number of clients and know the best path for success.