This Arizona law allows people to seal criminal records in court. Here's how

A new Arizona law that went into effect this year allows individuals to seal their criminal records for the first time in the state. Senate Bill 1294 gives individuals who were convicted, charged or arrested for a non-violent offense an opportunity to seal their record.

If your record is sealed, it means you’re allowed to say on your employment, housing, financial aid or loan applications that you’ve never been arrested for, charged with or convicted of a crime. According to FWS.us, in 2022 there were approximately 450,000 Arizonans with felony convictions. Having their records sealed would allow residents to supersede barriers and discrimination associated with trying to find employment or housing.

There are limitations on what kinds of crimes are allowed to be sealed and the process may differ depending on a person’s record.

The law was passed in June 2021 and sponsored by Rep. Ben Toma, R-Peoria. The law went into effect in January this year.

SB 1294 differs from Proposition 207 — the 2020 voter initiative that legalized recreational cannabis in the state and set up a path for people with minor cannabis convictions, charges and arrests to expunge their records. Like the proposition, however, the law remains an opt-in benefit, meaning people with criminal records must go through the process of filing a petition and getting approved. The expungement does not happen automatically.

According to Julie Gunnigle, expungement advocate and former Democratic candidate for Maricopa County Attorney, expunged records are considered to have never happened, while sealed records can still be viewed in certain contexts and used against someone in court as a historical prior.

Here’s what you need to know about the law and how it could help.

What to know before petitioning a court

Before people who were convicted of a crime can petition the court they were convicted in, they must have completed all the terms and conditions of their sentences, which includes paying all court fees and restitution.

“Once you’ve done all of that, the clock starts ticking,” said Randal McDonald of the Post-Conviction Clinic at ASU’s Sandra Day O’Connor College of Law.

Those who want to have their records sealed have to go through a waiting period before they can file with the court. These waiting periods start once those who’ve been convicted have completed all the conditions of their sentences or probations and have been discharged by the court.

The waiting periods before those who’ve been convicted can file to have their records sealed are:

• Two years for a class 2 or 3 misdemeanor

• Three years for a class 1 misdemeanor

• Five years for a class 4, 5 or 6 felony

• Ten years for a class 2 or 3 felony

Class 1 felony convictions cannot be sealed under this law.

The law also says that, if people have a prior historical felony conviction, they can petition the court to seal their records of arrest, conviction or sentence after an additional five years. A person who is convicted of two or more offenses can’t file to have the record sealed until the waiting period described above has passed for each conviction.

To find information on your case, look at your most recent court documents or find your case using the Arizona Judicial Branch Case Search.

How to petition the court to get records sealed

The law says you need to file a petition to have your record sealed in one of the following places depending on your situation:

• The court in which you were convicted of the crime you’re trying to seal.

• The court in which an indictment, information, criminal citation or complaint was filed against you, so long as the charges were dismissed, in which you were found not guilty or your conviction was vacated.

• The court in which you made an initial appearance, if charges were never filed.

• The Superior Court in the county where you were arrested if you did not have an initial appearance and no charges were filed.

Petitioners should try to provide as much information as possible, according to the Arizona Judicial Branch. This includes information about your arrest, any charges (including those not filed) and your case information (dates, arresting agency, location of booking, copy of the citation or citation number, department report number and incident number).

A petition can be filed by mail or in person, depending on the court where the petition is being filed. In Maricopa County, there is no filing fee.

More information can be found on the Arizona courts website. The petition to seal criminal case records in Maricopa County can be found at https://superiorcourt.maricopa.gov/media/7810/crsr1z.pdf.

How long does the process take?

Filing a petition does not guarantee that it will be approved.

After you’ve filed your request to have your record sealed, the court is supposed to notify the Arizona Department of Public Safety and have them create and submit a report to that court, including the petitioner’s state and federal arrests, prosecutions and convictions and “any other information” to help the court come to a decision.

“From there, you wait for a response to hear whether or not the prosecuting agency will object, and with any amount of luck this moves its way slowly through the court system,” Gunnigle said. “It takes a matter of months to accomplish.”

The person at DPS in charge of the investigation can charge fees unless the petitioner is suffering from extreme poverty, has been found not guilty or the case was dismissed or not prosecuted and the petition is filed in the appropriate court.

The court can’t accept or deny your petition until 30 calendar days after the court receives the petition, unless the court gets a notice from the prosecutor and all victims who have made a request for post-conviction notice saying they do not object to your petition.

The court can dismiss your petition if it doesn’t meet the requirements described in the law, but the court is supposed to grant your petition if it determines that doing so is in the best interest to you and the public’s safety. The clerk of the court is supposed to provide a copy of your petition to seal your records to the prosecutor, who can respond to the petition and request a hearing.

The victim has a right to be present and heard at any hearing “in which the defendant has filed a petition.” If the victim has made a request for post-conviction notice, the prosecutor must give them a notice of your petition and the victim's rights.

“Here we have an issue where the person needs to make a showing that this record being sealed will not endanger public safety,” Gunnigle said. “The research and science say that expungement and record sealing is criminal justice reform, and does make the community safer because these folks will have heightened chances to get housing, to get good jobs that pay well, to access benefits that they weren't able to before.”

Sealed records can still be used

According to Gunnigle, even if a person is approved to have the records sealed, there are instances in which the records can be used should that person re-enter the criminal justice system.

“That’s one of the big issues in my mind, it’s the fact that these convictions could still potentially be used against someone as historical priors, even if they are sealed,” Gunnigle said.

The law states the records can be used if a person is:

• Alleged as an element of an offense.

• Used as a historical prior felony conviction.

• “Admissible for impeaching any party or witness in a subsequent trial.”

• Used to make the sentence for a future felony longer.

• Used to make the sentence for a future DUI conviction longer.

Similarly, data broker sites can also legally pull your information and use it, despite your records having been sealed.

These websites buy information from other data brokers, scrape information from public social media profiles and pull data from local, state and federal government public records, according to the FTC. These people search sites can pull your criminal record and keep it in your report, even if your record has been sealed.

The FTC notes that there are really only two options for getting these reports taken down: going one by one and asking the websites to remove them or paying someone to do this for you.

This reporting was produced in collaboration with The Arizona Republic/La Voz and the Walter Cronkite School of Journalism’s course on Community Engagement Reporting, an effort to build trust and reach underrepresented and underserved communities of metro Phoenix.

This article originally appeared on Arizona Republic: How to seal your Arizona criminal records