“I was convicted of a crime. Can I get the conviction expunged or set aside?”  This is the type of question I am asked frequently, and the answer is, No, and, Maybe. Arizona does not have provide for something called “expungement”, a procedure which would wipe out the conviction and almost all records of it, though this is available in a lot of other states.Arizona does have something called a “set aside”, which does some of the same, but is not nearly as far reaching, since it does not wipe out the records, it only changes the final disposition of the crime from a conviction to a dismissal.

The Rules

Arizona’s set aside statute, A.R.S. § 13-907, says that, with some exceptions, “every person convicted of a criminal offense, on fulfillment of the conditions of the probation or sentence and discharge by the court, may apply to the judge, justice of the peace or magistrate who pronounced sentence or imposed probation or such judge, justice of the peace or magistrate’s successor in office to have the judgment of guilt set aside.”

But, there are exceptions, found in A.R.S. § 13-907(E), which lists convictions that may not be set aside. That list includes offenses that have been designated as dangerous, or which require registration as a sex offender, or where the victim was a minor under 15, or for driving on a suspended license, or for most offenses in Title 28, Chapter 3, of the Arizona Revised Statutes (moving violations). In other words, nearly every violation related to the “stopping, standing or operation of a vehicle” (almost any criminal moving violation) is excluded from being set aside. Among the crimes that probably cannot be set aside are criminal (excessive) speed, racing, exhibition of speed, or aggressive driving. Interestingly, reckless driving is an exception to that list of exceptions. DUI’s are also not excepted, so those may be set aside.

The Reality

Now you know what the law appears to allow and disallow. Despite that technical language in the law, this does not always match up with reality – we see no harm in asking the court to set aside a conviction even if it appears to be excluded, because in our experience, this request is often granted. Perhaps judges are unaware of the exclusion, or they do not care, or just as likely, that statute is written in a way that the exception from the exception that is excepted makes it hard to understand.

Regardless of the reason, judges will often grant a request to set aside even the apparently excluded convictions. You have nothing to lose by asking – the worst thing that could happen is your request is denied, while the best outcome is the conviction is set aside.

You may request to set aside a conviction as soon as you have fulfilled every “condition of the probation or sentence,” which in a criminal traffic case usually means after you have paid the fine. It often helps to let some time pass, at least a few months, before making your request. The more serious the violation, the more crime-free time should have passed. Also, the more serious the crime, the more detail you should attach to your application to support your request, such as information about changes you have made in your life after the conviction, your law-abiding nature since the conviction, your good character, your achievements since the conviction, or anything else that may help mitigate the severity of the original accusation.

The Steps

If you are interested in submitting a request to set aside a criminal speed conviction, we can help. You can also make this request on your own using this form – it’s really simple, but, as explained, the more serious the crime, the more time should have passed, and the more supporting documentation you should attach.

It is worth mentioning that even if you set aside a conviction, this will only remove the criminal conviction from your criminal record, but it cannot affect any other penalties or consequences, including points assessed and the notation of the violation on your MVD history, for example.

This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.