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Can a DUI Conviction be Expunged in Arizona?

Can a DUI Conviction be Expunged in Arizona?
Mandatory jail time, fines, ignition interlocks and license loss are direct effects of a DUI. There are many indirect effects as well, such as increased insurance rates and the inability to rent a car. One of the most severe indirect effects, however, is having a permanent criminal record. In Arizona, there are two records that you have to be concerned with: Arizona Department of Transportation, Motor Vehicle Division (ADOT/MVD) and the Supreme Court. Let’s look at them, individually:

ADOT/MVD is your driving record. It will contain everything about your driving history, but not non-traffic/non-license criminal offenses. For example, a DUI conviction is a criminal traffic offense, so it will appear. A shoplifting conviction is a criminal non-traffic offense, so it will not appear. Failure to stop for a red light is not a criminal traffic citation, it is a civil traffic citation and it will appear on your Motor Vehicle Record (MVR) if you are found responsible.

Attempting to use a false driver’s license to enter a bar, if you are underage, is not a driving offense, but it is an offense that will appear on your MVR.

To check your MVR, you can go to www.servicearizona.com and follow the steps. There is a small fee each time you check it. In order to check it, you will need some personal information and you will have to agree that, under penalty of law, you are the person listed in the record. Your MVR can only be viewed for the past 36 months. If your license is suspended pursuant to the Arizona Administrative Per Se laws due to taking a test and being over the prohibited alcohol limit, your record will be expunged of the suspension if you win the criminal portion of the DUI case.

As far as your criminal record is concerned, anyone who knows your name can check your criminal record online at www.supremecourt.az.gov/publicaccess which is the Arizona Supreme Court website. If that person knows your month and year of birth, that makes it even easier to find you.

A criminal record can never be expunged in Arizona, which is why it is very important to win a DUI case. The effects are forever.

Some attorneys have been known to advertise “expungement” and claim that they can wipe your criminal record clean. That’s false in Arizona. The best that anyone can do is to file a “Motion to Set Aside Conviction” with the court and hope that a judge grants it. A set-aside (see below) does not wipe away the conviction, it merely restores any rights lost or disabilities imposed due to the conviction. In felony matter, this may help someone convicted of a crime to get a job because an employer might look more favorably upon the job applicant. In a misdemeanor, it does nothing at all. In a nutshell, if you are convicted of any felony or misdemeanor DUI in the State of Arizona, your record will reflect that conviction forever, wether or not it is set-aside.

Arizona Revised Statute §13-907. Setting aside judgment of convicted person on discharge; application; release from disabilities; exceptions
A. Except as provided in subsection D of this section, every person convicted of a criminal offense, on fulfillment of the conditions of 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. The convicted person shall be informed of this right at the time of discharge.

B. The convicted person or, if authorized in writing, the convicted person’s attorney or probation officer may apply to set aside the judgment.

C. If the judge, justice of the peace or magistrate grants the application, the judge, justice of the peace or magistrate shall set aside the judgment of guilt, dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction except those imposed by:
1. The department of transportation pursuant to section 28-3304, 28-3306, 28-3307, 28-3308 or 28-3319, except that the conviction may be used as a conviction if the conviction would be admissible had it not been set aside and may be pleaded and proved in any subsequent prosecution of such person by the state or any of its subdivisions for any offense or used by the department of transportation in enforcing section 28-3304, 28-3306, 28-3307, 28-3308 or 28-3319 as if the judgment of guilt had not been set aside.
2. The game and fish commission pursuant to section 17-314 or 17-340.

D. This section does not apply to a person who was convicted of a criminal offense:
1. Involving a dangerous offense.
2. For which the person is required or ordered by the court to register pursuant to section 13-3821.
3. For which there has been a finding of sexual motivation pursuant to section 13-118.
4. In which the victim is a minor under fifteen years of age.
5. In violation of section 28-3473, any local ordinance relating to stopping, standing or operation of a vehicle or title 28, chapter 3, except a violation of section 28-693 or any local ordinance relating to the same subject matter as section 28-693.

About James Nesci

James Nesci
James Nesci often defends cases well into the .30 blood-alcohol range. He has caught more than one police officer lying during cross-examination and some police officers have even refused to grant pretrial interviews to him without a prosecutor or their own counsel present. He was one of the lead attorneys on the Intoximeters® RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 7,000 cases and the removal of the RBT-IV from the streets of Arizona. He also spear-headed the effort to obtain the manufacturer’s source code and software for the CMI Intoxilyzer 8000. Although the source code was never obtained, he almost single-handedly ground 90% of all DUI prosecutions within the City of Tucson to a halt for nearly three years and obtained breath test suppressions and dismissals in hundreds of DUI cases. In addition to “traditional” DUI cases which involve alcohol, Mr. Nesci is a recognized expert on the defense of DUI/Drugs cases. Whether they be legal-over-the-counter-medications, prescription medications or illicit drugs, such DUI cases are far more complex and present cutting-edge issues for the courts. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines. In 2006, he was appointed Regent of the National College for DUI Defense, Inc. He was formerly the chair of the Curriculum Committee for the NCDD. Currently, he is the State Delegate Coordinator, a member of the Amicus Committee, Treasurer of the NCDD, Member of the Executive Committee and served as an oral argument judge for the Board Certification Committee. Mr. Nesci is the author of Arizona DUI Defense: The Law & Practice, a legal treatise written for DUI defense attorneys and published by Lawyers and Judges Publishing Company (now in its third edition) [www.lawyersandjudges.com]. In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense [www.NCDD.com]. In 2001, he was Board Certified by the National College for DUI Defense, Inc., which is a is recognized by the American Bar Association. He is one of only three Board Certified attorneys in the State of Arizona, and one of less than fifty Board Certified attorneys in the nation (as of January, 2012). Mr. Nesci has lectured from coast-to-coast for such organizations as The University of Arizona James E. Rogers College of Law, Arizona State University College of Law Alumni Association, University of Mississippi CLE Department, South Texas College of Law CLE Department, Arkansas Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Arizona Public Defenders Association, California Attorneys for Criminal Justice, City of Phoenix Public Defender's Office, Colorado Criminal Defense Bar, Florida Association of Criminal Defense Lawyers, Indiana Public Defender’s Council, Kansas Association of Criminal Defense Lawyers, Louisiana Association of Criminal Defense Lawyers, Maricopa County Bar Association, Maricopa County Public Defender's Office, Maryland Criminal Defense Attorneys Association, the Mexican-American Bar Association at Loyola, the National Association of Criminal Defense Lawyers, the National College for DUI Defense, the Nebraska Criminal Defense Attorney’s Association, the Nevada State Bar Association, the New York State Bar Association, the Ohio Association of Criminal Defense Lawyers, the Pima County Bar Association, the Pima County Bar Association Young Lawyer’s Division, the Texas Criminal Defense Lawyers Association, the Tucson City Public Defender’s Office, the Tulare County (California) Public Defender’s Association, the Utah Criminal Defense Lawyers Association, and the Washington Foundation for Criminal Justice. He has taught seminars on the subjects of Ethics, 4th Amendment Law, Drug Recognition Evaluations (DUI-Drugs/DRE), Cross-Examination, Trial Tactics, Jury Selection, Field Sobriety Testing, Driving Behavior, Blood Alcohol Calculations, Opening & Closing Arguments, Source Code Litigation, Frye & Daubert Challenges, Intoxilyzer 8000 Operator’s Course, Headspace Gas Chromatography, Blood and Breath Testing. He has represented former Supremes lead singer Diana Ross and Tampa Bay Buccaneers' Tight-End Jerramy Stevens on Extreme DUI charges and fitness guru Richard Simmons on an assault charge. Mr. Nesci lives in Tucson with his wife and twin daughters. He is an honorably discharged veteran of the U.S. Navy where he spent much of his time working as an electrician in the Philadelphia Naval Shipyards. His interests are traveling, fine wines, vintage port and fast cars. He is an amateur race car driver, an accomplished mechanic, and a Corvette fanatic.

If you would like to contact the author, please visit: http://www.azdefense.com/


4 comments

  1. Christopher a. Lanzarotta

    I’m looking to get my dui expunged, from 2006

  2. I got a dui back in 2011. I am looking to get it expunged.

    • Marie,

      I strongly suggest you contact Mr. Nesci or another lawyer in his office for more information. Best of luck, the moderator

    • Nothing in Arizona can be expunged. Unlike other states, Arizona has no expungement statute. The best that can be done is to set-aside the conviction, if it was a felony. That restores your rights. If it was not a felony, then nothing can be done.

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