ARIZONA STATE SENATE
Fifty-Fifth Legislature, First Regular Session
AMENDED
college
course credit; dual enrollment.
(NOW: community college; expenditure limitation)
(NOW: sentencing records; sealing arrest; liability)
As passed by the Senate, S.B. 1294 increased the prescribed weight for career and technical education courses for determining expenditure limitations and allowed community college districts exceeding expenditure limitations to receive state aid in FYs 2021 through 2023.
The House of Representatives adopted a strike-everything amendment that does the following:
Purpose
Effective January 1, 2023, allows a person to file a petition to seal all case records related to a criminal offense under specified circumstances and outlines procedures for petitioning to seal such records.
Background
When a judgment of guilt is set aside: 1) the Department of Public Safety (DPS) must update the person's criminal history with an annotation that the conviction has been set aside; and 2) the person's right to possess a firearm is restored if the required time has passed since the offense and that person was not convicted of a serious offense (A.R.S. 13-905).
Statute allows every person convicted of a criminal offense, on fulfillment of the conditions of probation or sentence and discharge by the court, to apply to the court to have a judgment of guilt set aside, unless that criminal offense: 1) is dangerous; 2) requires the defendant to register as a sex offender; 3) is committed for the purpose of the defendant's sexual gratification; 4) is a felony offense in which the victim is a minor under 15 years old; or 5) is in violation of statute prohibiting driving on a suspended, revoked or cancelled license, any local ordinance relating to stopping, standing or operation of a vehicle or statute on traffic and vehicle regulation, except those regarding reckless driving (A.R.S. 13-905).
S.B. 1294 appropriates $500,000 from the state General Fund to the Administrative Office of the Courts to implement new requirements.
Provisions
Sealing Records
1. Appropriates $500,000 from the state General Fund in FY 2023 to the Administrative Office of the Courts to pay for the costs of implementing new requirements relating to sealing criminal case records.
2. Allows a person to file a petition to seal all case records related to a criminal offense if the person was:
a) convicted of a criminal offense and has completed all of the terms and conditions of the sentence imposed by the court, including the payment of all monetary obligations and restitution to all victims;
b) charged with a criminal offense and the charge was dismissed or resulted in a not guilty verdict at a trial; or
c) arrested for a criminal offense and no charges were filed.
3. Exempts, from the ability to seal criminal records, a person who is:
a) sentenced as a dangerous offender;
b) convicted of a dangerous crime against children;
c) convicted of any offense that has as an element of the offense:
i. the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument; or
ii. the knowing infliction of serious physical injury on another person;
d) convicted of sex trafficking; or
e) convicted of a class 2, 3, 4 or 5 felony offense for a sexual offense or sexual exploitation of children.
4. Requires the court, at the time of sentencing and in writing, to inform a person on the record that the person may be eligible to petition the court for an order that seals all case records of the person's arrest, conviction and sentence that are related to the offense.
5. Allows a person who was convicted of an offense and who has not subsequently been convicted of any other offense except a misdemeanor traffic violation, excluding a driving under the influence (DUI) offense, to petition the court to seal the person's records of arrest, conviction and sentence after:
a) the person completes all of the terms and conditions of the person's sentence, including paying all fines, fees and restitution ordered by the court; and
b) the following period of time has passed since the person completed the conditions of probation or sentence and was discharged:
i. 10 years for a class 2 or 3 felony;
ii. 5 years for a class 4, 5 or 6 felony;
iii. 3 years for a class 1 misdemeanor; or
iv. 2 years for a class 2 or 3 misdemeanor.
6. Allows a person with a prior historical felony conviction to petition the court to seal the person's records of arrest, conviction and sentence pursuant to the same rules for sealing of records for persons without a prior historical felony conviction, except that the person must wait an additional five years since the person completed the conditions of probation or sentence and was discharged to file such a petition.
7. Prohibits a person convicted of two or more offenses from petitioning the court to seal the person's case records until the prescribed period of time has passed for each conviction.
8. Prohibits a conviction for an offense committed in another jurisdiction that, if committed in Arizona would not constitute an offense, from being used against the petitioner or prohibiting the petitioner from having a record sealed.
9. Stipulates that the classification of an offense committed in another jurisdiction has the classification that the offense would have if committed in Arizona.
10. Requires a person petitioning to seal case records to file the petition in:
a) the court in which the person was convicted of an offense;
b) the court in which an indictment, information, criminal citation or complaint against the person was filed and the charges were dismissed, the person was found not guilty or the person's conviction was vacated, unless the complaint was filed in a justice court and a subsequent information was filed, in which case the petition must be filed in the superior court;
c) the court in which the person had an initial appearance if charges were not filed; or
d) the superior court in the county where a person was arrested if the person did not have an initial appearance and no charges were filed.
11. Requires the clerk of the court to provide a copy of the petition to seal case records to the prosecutor.
12. Allows the prosecutor to respond to a petition to seal case records and request a hearing.
13. Stipulates that the victim has a right to be present and heard at any proceeding in which the defendant has filed a petition to seal case records.
14. Requires the prosecutor to provide the victim with notice of the defendant's petition and of the victim's rights if the victim has made a request for postconviction notice.
15. Requires the court, after a petition to seal case records is filed, to notify DPS and request DPS to prepare and submit a report to the court that includes all of the petitioner's state and federal arrests, prosecutions and convictions and any other information that the court requests or that DPS believes will assist the court in making its determination.
16. Allows the Director of DPS (Director) to charge the petitioner a fee that is determined by the Director for the investigation unless:
a) the petitioner is indigent or has been found not guilty; or
b) the case was dismissed or not prosecuted and the petition is filed because the petitioner was:
i. charged with an offense but not convicted; or
ii. not charged with an offense but had an initial appearance.
17. Prohibits the court from granting or denying a petition to seal a person's case records until 30 calendar days after the court receives the petition, unless the court receives notice that both the prosecutor and all victims who have made a request for postconviction notice do not object to the petition.
18. Prohibits, if a petitioner is charged with an offense after filing a petition to seal case records and the offense could result in a conviction that cannot be sealed or that could extend the time to file a petition to seal case records, the court from granting or denying the petition until the court disposes of that charge.
19. Requires the court to grant a petition if the court determines that granting the petition is in the best interests of the petitioner and the public's safety.
20. Allows the court to grant or deny a petition to seal case records without a hearing unless the petitioner, prosecutor or victim requests a hearing.
21. Allows the court to dismiss a petition that does not meet the requirements prescribed without a hearing.
22. Prohibits, if the court denies a petition to seal case records, a person from filing a new petition until three years after the denial.
23. Allows a defendant to appeal an order that denied the defendant's eligibility to petition the court to seal the defendant's case records if the sole basis for the appeal is the defendant's eligibility to petition the court.
24. Stipulates that that the Supreme Court and the Court of Appeals are not required to seal any record.
Uses of Sealed Records
25. Requires, if the court grants a petition to seal case records:
a) the court to issue an order sealing all records relating to the petitioner's arrest, conviction and sentence and directing the clerk or the court to notify DPS and the prosecutor of the sealing order;
b) the clerk of the court, on order of a court, to seal all case records relating to the petitioner's arrest, conviction and sentence;
c) DPS to designate the case records as sealed within DPS's records and inform all appropriate state and federal law enforcement agencies of the sealing; and
d) the arresting and prosecuting agencies to clearly identify in each agency's files and electronic records that the petitioner's arrest or conviction and sentence records are sealed.
26. Allows all sealed case records to be:
a) alleged as an element of an offense;
b) used as a historical prior felony conviction;
c) admissible for impeaching any party or witness in a subsequent trial;
d) used to enhance the sentence for a subsequent felony;
e) used to enhance the sentence for DUI;
f) pleaded and proved in any subsequent prosecution of the person by the state or a political subdivision; and
g) used as a conviction if the conviction would be admissible if the conviction was not sealed.
27. Allows, if the court grants a petition to seal case records, a person whose records are sealed to state in all instances including in response to questions on employment, housing, financial aid or loan applications that the person has never been arrested for, charged with or convicted of the crime that is the subject of the arrest or conviction, unless:
a) the person is submitting an application that requires a fingerprint clearance card;
b) the sealed case records involved a violation of statute regarding public buildings and improvements;
c) the sealed case records involved a burglary or theft from a residential or nonresidential structure and the person is applying for a job that requires entering into and performing services inside of a residential structure;
d) the sealed case records involved child abuse or aggravated assault and the person is applying for a job involving supervising, educating or administering care to a minor;
e) the sealed case records involved vulnerable adult abuse and the person is applying for a job involving supervising or administering care to a vulnerable adult or a person who is at least 65 years old;
f) the sealed case records involved a violation of statute regarding boating, driving or flying under the influence of drugs or alcohol and the person is applying for a job involving the commercial or private operation of a motor vehicle, boat or airplane;
g) the sealed case records involved theft, theft of means of transportation, forgery, taking the identity of another or fraudulent schemes and artifices and the person is applying for a job involving accounting, overseeing, transporting, handling or managing another person's money or financial assets;
h) the person is applying for a position with a law enforcement agency, a prosecutor's office, a court, a probation department, a child welfare agency, DPS, the Arizona Department of Juvenile Corrections or the Arizona Department of Corrections (ADC);
i) the person is undergoing a background check for the placement with that person of a child who is in the custody of the Department of Child Safety (DCS);
j) the disclosure is required by a state or federal law; or
k)