Understanding Arizona Record Clearing Law: Set Aside and ARS § 13-905 Explained

Arizona's Approach to Record Clearing: What "Set Aside" Actually Means

Arizona occupies a distinctive position among U.S. states when it comes to criminal record relief. While most states that offer some form of expungement allow petitioners to seal or destroy their records, Arizona's primary mechanism — the "set aside" under ARS § 13-905 — does neither. Understanding precisely what a set aside accomplishes, and equally important, what it does not accomplish, is essential for anyone seeking to clear their record in Arizona.

The term "expungement" is used colloquially in Arizona, and attorneys sometimes use it loosely, but the technical reality is that Arizona does not have traditional expungement for most criminal offenses. The set aside process is a distinct legal remedy with different legal effects, and anyone relying on incorrect assumptions about how a set aside functions on a background check may find themselves disappointed or unprepared.

What the Set Aside Does Under ARS § 13-905

Under ARS § 13-905, when a court grants a set aside, the court vacates the judgment of guilt, dismisses the underlying charges, and releases the defendant from all penalties and disabilities resulting from the offense. On its face, this sounds like expungement. In practical terms, however, the record itself is not destroyed, sealed, or hidden from public view. The record continues to exist and continues to be accessible through court records searches and background check databases.

What appears on a background check after a set aside is typically the notation "conviction set aside" rather than "no conviction found." For many employers, landlords, and licensing agencies, that distinction carries real weight. Some background check companies treat a set-aside conviction as functionally equivalent to a conviction that was never challenged, and certain industries interpret the "set aside" notation as confirmation that a criminal record exists. This is categorically different from what a person with an expunged record in California or Illinois would experience, where the underlying conviction is hidden from the vast majority of background check results.

That said, a set aside is not meaningless. It does provide legal relief from certain statutory disabilities, and courts and prosecutors must take it into account when considering the person's history in future proceedings. Under Arizona law, a person whose conviction has been set aside may accurately represent to most private employers that the matter was resolved by a set aside, though truthful disclosure of the underlying offense may still be required in specific licensing contexts.

Who Qualifies for a Set Aside

Eligibility for a set aside under § 13-905 requires that the petitioner complete all conditions of their sentence. This includes finishing any term of probation in full, paying all fines and fees ordered by the court, completing any ordered community service, and satisfying any restitution obligations. The petitioner must also have no criminal charges currently pending against them.

The statute applies to both felony and misdemeanor convictions, but felony convictions receive heightened judicial scrutiny. Courts retain broad discretion in deciding whether to grant a set aside, and in the case of felonies, judges may closely examine the nature of the offense, the petitioner's conduct since the conviction, and whether granting relief serves the interests of justice.

There are specific, statutory categories of offenses that are permanently ineligible for set aside under § 13-905(C). These include:

Offenses that involved a minor under the age of 15 as a victim are categorically barred. Offenses involving deadly weapons or dangerous instruments are ineligible. Any offense requiring the convicted person to register as a sex offender is excluded, along with dangerous crimes against children as defined under ARS § 13-705. Operating a motor vehicle while under the influence of alcohol or drugs when a minor was present in the vehicle at the time of the offense is also ineligible.

These exclusions reflect legislative judgments about the categories of offenses for which the state does not extend the benefit of the set-aside mechanism. If an offense falls into any of these categories, no amount of rehabilitation or time elapsed will make the person eligible for a set aside of that particular conviction.

The Certificate of Second Chance: ARS § 13-905.02

In 2020, Arizona enacted a companion relief mechanism under ARS § 13-905.02 known as the Certificate of Second Chance. This certificate can be granted alongside a set aside or, in some cases, independently. Its primary practical effect is to limit the degree to which the underlying conviction can be used to automatically deny occupational licenses for certain professions.

Arizona, like many states, has numerous occupational licensing requirements that reference prior criminal convictions as automatic disqualifiers. The Certificate of Second Chance does not erase those convictions, but it provides legal protection against a licensing board categorically denying an application based solely on the fact of a prior conviction where a set aside has been granted. The board must still consider the application on its merits rather than treating the conviction as an automatic bar.

Additionally, the certificate provides some protections against employer discrimination — private employers who receive a Certificate of Second Chance alongside a set aside are on notice that the conviction has been addressed through the legal process. While employers retain significant discretion in hiring decisions in Arizona's at-will employment environment, the certificate signals that the state has formally recognized the person's rehabilitation.

The practical benefit of pursuing a Certificate of Second Chance alongside a set aside depends heavily on the specific profession or industry involved. For licensed trades, healthcare roles, childcare workers, and financial service positions, the certificate can make a meaningful difference. For positions that do not involve occupational licensing, its impact is more limited.

Marijuana Expungement Under Prop 207: ARS § 36-2862

Arizona voters approved Proposition 207, the Smart and Safe Arizona Act, in November 2020. This measure legalized recreational marijuana for adults and created a separate, distinct process for relief from prior marijuana-related convictions — and critically, this process IS true expungement rather than a set aside.

Under ARS § 36-2862, any person convicted of an offense that would now be lawful under Prop 207 may petition the court for expungement of that record. The qualifying offenses include possession of one ounce or less of marijuana, possession or use of marijuana paraphernalia, personal cultivation of up to six marijuana plants at a residential location, and transportation of one ounce or less of marijuana.

Unlike the set-aside process, a successful Prop 207 expungement does result in the record being expunged — meaning it is treated as if it never occurred. This is a fundamentally different legal outcome and provides substantially stronger protection in background check contexts.

The petition is filed in the same court that handled the original conviction. The petitioner identifies the specific conviction they are seeking to expunge, demonstrates that the underlying conduct would now be lawful, and asks the court to grant expungement. Courts have generally handled these petitions efficiently since Prop 207 took effect, given the clear legislative intent behind the measure.

It is important to note that the Prop 207 pathway applies only to marijuana offenses that are now lawful under Arizona law. Marijuana offenses that involved minors, that occurred in combination with other criminal conduct, or that exceeded the quantities now permitted under Prop 207 do not qualify. And the vast majority of non-marijuana criminal convictions in Arizona have no equivalent statute providing for true expungement.

The Filing Process for a Set Aside

A petition for set aside must be filed in the court that entered the original judgment of conviction. For felony convictions, that is the superior court of the county where the offense was prosecuted. For misdemeanor convictions, the petition is filed in the municipal court or justice court that handled the case.

The petition must typically include the petitioner's full name, date of birth, the case number of the original conviction, a description of the offense, the date of sentencing, and a statement confirming that all conditions of sentence have been satisfied. Many courts have standardized forms for this purpose, and self-represented petitioners can obtain them through the court clerk's office.

Filing fees vary by county and court type. In most Arizona courts, the filing fee for a set-aside petition ranges from approximately $50 to $150, though fees can differ and courts can impose additional administrative charges. Some courts may waive fees for indigent petitioners upon proper application.

After filing, the petition is typically served on the prosecuting agency — either the county attorney's office or city prosecutor, depending on whether the original case was a felony or misdemeanor. Prosecutors have the opportunity to review the petition and may file a written response. In some cases, the court schedules a hearing at which the petitioner may address the judge directly. In others, the court rules on the petition on the papers without a hearing.

If the court denies the petition, Arizona law permits the petitioner to refile at a later date in most circumstances. Denial is not permanent, and a petitioner who was denied due to incomplete satisfaction of sentence conditions may refile once those conditions are met.

Practical Realities and What to Expect

The limitations of Arizona's set-aside process compared to true expungement deserve direct acknowledgment. Persons who receive a set aside and then undergo a background check for employment or housing should be aware that:

Commercial background check companies frequently report the conviction as "conviction set aside" or similar language, and their databases may take time to update after the court grants the set aside. Requesting an updated copy of the court's records and providing it directly to a background check company following a set aside can help ensure accurate reporting. Federally required background checks — such as those for federal employment, federal contracting, or federally regulated industries like banking — do not recognize Arizona's set aside as clearing the record and will still reflect the underlying conviction.

Arizona state licensing boards are required under state law to consider set-asides when reviewing applications, but some boards have regulations that require disclosure of convictions regardless of set-aside status, particularly for professions involving healthcare, education, law enforcement, and childcare.

For persons with Arizona convictions whose offenses do not fall within the Prop 207 marijuana expungement pathway, the set aside under ARS § 13-905 — imperfect as it is — remains the principal mechanism for record relief available under state law. A consultation with a licensed Arizona attorney who focuses on criminal record relief can provide a realistic picture of what a set aside will accomplish in a specific person's circumstances.

For a full overview of Arizona's eligibility rules and the process for filing, visit the Arizona expungement guide.

Considering Whether to Petition

The decision to pursue a set aside should take into account the specific professional, licensing, or personal goals the petitioner is trying to achieve. For someone seeking state occupational licenses affected by prior convictions, pursuing a set aside alongside a Certificate of Second Chance is generally advisable. For someone whose primary concern is a federal background check for federal employment or housing assistance, the limits of Arizona's set aside should be understood clearly before investing time and money in the process.

Arizona's legislative approach to record relief continues to evolve. Advocacy organizations in the state have pressed for more robust expungement legislation beyond the Prop 207 marijuana pathway, and future legislative sessions may produce expanded relief mechanisms. Staying current with Arizona's statutory framework is important for anyone navigating this area of the law.