When a Set Aside Record Must Be Disclosed in Arizona


Russell v. Royal Maccabees Life Insurance Company
Arizona Court of Appeals, Division One, Department B
May 7, 1998

Holding: Setting aside criminal records pursuant to Arizona Revised Statutes 13-907 does not completely erase the defendant’s records, and such relief does not authorize the defendant to state he has never been convicted of a felony, unless he states that he has had the conviction set aside.

Why This Case is Important: The effects of A.R.S. section 13-907 can often be confusing. A dominant question that arises is whether a defendant who obtains section 13-907 relief has to reveal that he has been convicted in the past. The answer is a complicated yes and no.

This case points out that setting aside a conviction does not completely eradicate a defendant’s criminal record. The statute itself evidences language that the relief is not meant to erase the fact a conviction occurred. (A.R.S. 13-907 states that the conviction could still be used for subsequent prosecutions and for matters involving the department of transportation). Further cases and actions by the state legislature have served to narrow the effects of 13-907. For example, A.R.S. section 13-904(E) states that “a person who has obtained 13-907 relief may be denied a license, permit or certificate to engage in an occupation by reason of the prior conviction or felony if the offense has a reasonable relation to the functions of the employment or occupation for which the license, permit or certificate is sought.”

Limiting the beneficial effects of 13-907, however, is not done arbitrarily. Courts and the state legislature will not hesitate to require disclosure and approve denial of employment or license where it is to protect the public. In this case, the court held that setting aside a conviction does not prevent insurance companies from requiring full disclosure when determining whether to provide coverage. It came to this decision on the grounds of advancing public protection. Indeed, the court in this case came to the conclusion that when a defendant sets aside his conviction, the only way in which he can assert he has not been convicted is to state that he has had his conviction set aside.

It is important to note that a set aside still provides great benefits. A set aside signifies to society that a defendant has been rehabilitated. This allows a defendant to move forward with his personal and professional goals. Those who obtain a set aside are therefore placed at a higher advantage than those who are unable to obtain relief.

What Happened in This Case: In 1980, the defendant in this case was charged with felony insurance fraud and felony theft. He pleaded guilty to the felony theft charge, and the insurance fraud charge was dismissed. The defendant was sentenced to four years of probation.

About seven months into probation, the defendant’s probation officer recommended early termination of probation, and the trial court granted it. The court subsequently granted the defendant’s petition to set aside his conviction pursuant to section 13-907.

In 1994, the defendant was in an accident, and he was placed on disability by his doctor. The defendant filed a disability claim under his insurance policy but was denied. The defendant sued to enforce the claim, and the insurance company counterclaimed to rescind the contract based on the fact that the defendant answered that he did not have a prior conviction in his initial application. A motion for summary judgment was granted in favor of defendant’s insurance company.

The defendant appealed, claiming that he had his conviction set aside and was not required to disclose it. The Arizona Court of Appeals disagreed with the defendant.

The court of appeals held that a set aside does not serve to completely erase the fact a conviction happened. After examining case and statutory law, the court of appeals determined that a defendant had to disclose such information where it is necessary to protect the public. The court of appeals determined that disclosure to the insurance agency was necessary to protect the public. The appeals court therefore concluded that the defendant misrepresented his application by initially stating he did not have a past conviction.

Key Language: When probationers are discharged and/or the court orders restoration of civil rights pursuant to A.R.S. section 13-907, notice should be given that expungement under section 13-907 does not justify a defendant in stating the he has not been convicted of a felony, unless he also calls attention to the expungement order.

Expert Advise: “Although limitations have been placed on section 13-907 relief, it still provides many benefits to the rehabilitated defendant. Obtaining a set aside will allow a former defendant to take advantage of many personal and professional opportunities that would otherwise have been unavailable.” Attorney Mathew Higbee.

To read about more cases that help to define record clearing relief laws click here.

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