What is a Set-Aside?
Arizona does not offer "sealing" or "expungement" of adult criminal records, but it does offer "set-aside." A set-aside does not delete your criminal record. Instead, Arizona adds a notation next to the conviction record stating that you have received a set-aside. This means that the judgment of conviction has been vacated. Employers, landlords, and banks will see both the record of conviction and of the set-aside.
Who is Eligible for a Set-Aside?
In general, you are eligible to have a record set-aside for a misdemeanor or felony conviction if you have successfully completed probation or your sentence and you were officially discharged. There is no limit to how many set-asides you can apply for. You must apply separately for each case or conviction.
You are not eligible for a set-aside if the conviction involved any of the following:
- serious physical injury;
- use of a deadly weapon or dangerous instrument;
- a victim under the age of 15 years;
- certain traffic violations; or
- sexual offenses.
In addition, all of the following must be true:
- You do not have any charges pending against you;
- You have paid all fines and restitution; and
- You have waited two years after discharge from either sentencing or probation to apply for a set-aside if you have more than one felony conviction.
If you are uncertain whether you are eligible for a set-aside, consult with an attorney.
What Effect Does a Set-Aside Have?
Once an Arizona court grants a set-aside, the Department of Public Safety (DPS) will add a notation next to the conviction that it has been set-aside. That means that the court has set-aside or vacated the judgment of guilt, restored your civil rights, and freed you from all penalties and disabilities.
A set-aside does not release you from some motor-vehicle restrictions. Getting a conviction set-aside will not affect your driver's license status.
Although a conviction is set-aside, all of the following remain in effect:
- The conviction can be used as a predicate offense in future prosecutions.
- If applicable, you must still register as a sex offender.
- The conviction may be admissible in court as a prior conviction.
- The conviction may be counted as an element of another offense.
- If you are asked about your record, you are still required to tell about the conviction.
A set-aside is good to apply for, but it has limitations. Your conviction remains a public record because Arizona law considers it a matter of public protection.
When Can I Apply for a Set-Aside?
You can apply for a set-aside of a conviction only after you have completed your probation or your sentence and are officially discharged. You must have paid all fines and fees, but you can apply for a set-aside even if you have not paid all restitution. You must have no charges pending.
If you have been convicted of only one felony and completed your incarceration, there is no wait to apply for a set-aside. If you have more than one felony conviction, you must wait two years after discharge to apply for a set-aside.
How Do I Apply for a Set-Aside?
Here are the 10 steps to apply for a set-aside:
- Complete the "Statement of Absolute Discharge" form. To access the form and instructions, visit the Arizona's Department of Corrections (DOC) website here: Statement of Absolute Discharge.
- Get a "Statement of Absolute Discharge" from the Arizona Department of Corrections (DOC) by sending in a written request. The DOC does not accept phone requests. You will get your statement in the mail within 14-21 days. For further assistance, email ADCABSDISCH@AZADC.gov.
- Get the correct form to apply for a set-aside. Call your county-court clerk where you will file the application and find out if the court accepts the state forms or has its own forms. If the court accepts the state forms, you can access the form on the Arizona Courts website here: Arizona Judicial Branch Forms. Go to the chart at the bottom and download the "application to set-aside conviction" form.
If your court does not, it probably has set-aside forms to download online. For example, Maricopa County has its own forms with instructions available online. To access the forms, visit the Maricopa Superior Court website here: Application to Set-Aside.
- Complete the correct set-aside form.
- Make copies of everything.
- Go to the clerk of the Superior Court in the Arizona County where you were charged. You must file your application for a set-aside with any supporting documents with the clerk.
- Send another complete application to the judge and to the county attorney. Your application for a set-aside is a "motion" that the judge will decide.
For more information about the procedures, visit the Arizona Court website here: Arizona Judicial Branch Forms. Scroll down to the very bottom of the chart and download the "Procedures" form, GNCR10F 1.
- Pay the fee if required. There is no fee for a set-aside itself, but there is usually a court fee to file a motion or petition.
- Follow the instructions to deliver copies to the judge and the county attorney, either by mail or in person.
- Wait several months. If you ask for a hearing, the court may hold a hearing on your application for a set-aside. If it does not hold a hearing, the court will notify you when the judge has made a decision. Under Arizona law, the judge has discretion.
If the judge denies your application for a set-aside, you can file for "reconsideration." Usually, the form that you filled out to apply for a set-aside is the same form you use to ask for reconsideration.
Arizona also offers reduction of some felonies to a misdemeanor. If you have an undesignated Class 6 felony conviction on your record, you can apply to have it reduced to a misdemeanor. To be eligible for a reduction, you cannot have two felony convictions and the class 6 felony must not be a dangerous offense. This means the felony did not result in serious injuries and did not involve the use of a deadly weapon or dangerous instrument.
To apply for reduction, visit the Arizona Courts website here: Arizona Judicial Branch Forms
More Information About a Set-Aside
For more information about set-asides and class 6 felony reduction in Arizona, visit the related links.