Tucson Criminal Lawyer A new law going into effect December 31, 2022 will permit certain people in Arizona to seal arrest records from their criminal records. In short, Arizona Senate Bill 1294, which passed in 2022, will allow for many people arrested in Arizona to seal their arrest records. This new law allows for sealing of arrests that occurred prior to the law going into effect, as well as for those arrested in the future.
This relief is new, and something not previously available under Arizona law. If you have previously applied for a set aside or had civil rights or gun rights restored, you may also be eligible to go one step further and have court and arrest records sealed. If you had previously been arrested but not charged with a crime, acquitted, or had charges dismissed, you will likely be eligible for this relief now, even though it was not available in the past. MORE ABOUT CLEANING UP YOUR CRIMINAL HISTORY The Arizona Department of Public Safety's Criminal History Records Division keeps track of every arrest in Arizona and adds the information to the person's criminal history. This takes place even in cases where no charges were filed in court, and in cases where an arrested person had their charges dismissed or was acquitted. The records are then forwarded to the FBI's Criminal Justice Information Services Division, the largest and most frequently used database when conducting a background check. "Sealing" a record means taking a record out of the public's view. This could include records maintained by a court, law enforcement agency, or other government actor. A sealing order is a court order that restricts access to or disclosure of any record or document. For years, Arizona law has allowed for sealing of various types of documents, including search warrant affidavits, court documents containing the information of minors or victims, and more. Finally added to the list of records which a court can seal: arrest records. This is a landmark change for many people. Those who were not convicted of any crime, but who had been arrested, would still have an "arrest record." Similarly, those who were convicted, but who had their convictions "set aside" would still have a vestige of a criminal history in the form of an "arrest record." The new law does not cover all arrests. Criminal offenses committed with the use of a firearm, sexually motivated offenses, offenses requiring sex offender registration, crimes against a victim under 15, and certain driving offenses are not eligible for sealing of arrest. THE APPLICABLE ARIZONA STATUTE: A.R.S. § 13-911- Sealing of arrest, conviction and sentencing records; requirements; fee; appeal; definition (FULL TEXT) A.R.S. 13-911 states that people who meet the following requirements can have their criminal records sealed:
According to Arizona law, having your arrest ordered sealed by the court means that you can lawfully assert that you were not arrested and hides the records from public view. This can affect employment, housing, access to schools/hospitals/military bases/jails and more. Additionally, an arrest record, even with no conviction, can result in difficulties with the background checks conducted for firearm purchases, professional licensing, and more. Without associated court records, the agency reviewing a criminal history with an arrest, might not be able to determine what the final disposition of that arrest was. There is also a long list of things that sealing a record doesn't do, including: use of a prior as a prior conviction for harsher punishments on a new case, use of a prior conviction to impeach a witness' testimony, or to show an element of a new offense. Additionally, those applying for a professional license with a state or national licensing agency (e.g. nursing, real estate, law license) are generally expected to disclose even sealed matters. Consult with an administrative law lawyer who specializes in professional licensing when applying for a professional license with any criminal history. Because applications for sealing will not be reviewed until the new law goes into effect at the end of 2022, it is not clear exactly how long the process to seal an arrest will take. Note that for more serious offenses, a period of time may need to pass before eligibility. Additionally, the Court will likely not take action on your petition in less than 30 days as written into the statute. Beyond that, the length of time this process takes will vary from court to court. IF YOU OR A LOVED ONE HAS BEEN ARRESTED, CHARGED WITH A CRIME, OR CONVICTED OF A CRIME IN ARIZONA, CONTACT THE TUCSON DEFENDERS TODAY TO SEE HOW WE MIGHT BE ABLE TO HELP YOU PETITION THE COURT TO SEAL ANY ASSOCIATED RECORDS. 520-585-5757.
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TUCSON CRIMINAL DEFENSE LAWYER Certain criminal charges in California carry mandatory minimum sentences, which judicial officers have generally been unable to sidestep. This is applicable to some misdemeanor offenses which carry mandatory minimum amounts of jail time (for example, Driving Under the Influence) or more serious felony offenses which require a minimum amount of prison time to be imposed upon conviction for certain offenses. This new change in the law increases judicial discretion, allowing a judge to look at a specific case and to determine that a particular defendant or particular crime does not require imposition of the prescribed minimum sentence. Though this type of law does affect the separation of powers, this is also part of a trend away from mandatory sentencing, in favor of greater judicial discretion. Federal sentencing, for example, was famous for its strict adherence to sentencing guidelines put in place during the late 1980s, until reforms rendered the guidelines merely advisory. Federal law does still have mandatory minimum sentencing for certain offenses. Prior to this change in the law, ARS §13-701 required a sentencing judge to look at the available range of sentencing and impose a sentence within that range based on the presence of mitigating or aggravating factors. This included not imposing a sentence below the minimum available sentence. Now, pursuant to ARS §13-719, judges may impose a sentence different from an applicable mandatory sentence, and may suspend the term if they deem that doing so is appropriate after considering the nature of the conduct, history and character of the defendant. Whenever a judge does depart from mandatory minimum sentencing, they must state the reasons for doing so on the record at sentencing. This law does not apply to crimes involving death or serious bodily injury to another person, certain child sex crimes, and engaging in a continuing criminal enterprise. Though this new law does not guarantee a better outcome for any criminal defendant, it provides additional tools for defendants, defense attorneys, and judges in crafting more favorable dispositions. It also takes away some of the bargaining power prosecutors would have when charging offenses with mandatory minimum sentences. IF YOU OR A LOVED ONE IS FACING CRIMINAL CHARGES IN ARIZONA, HAVING AN EXPERIENCED, SKILLED ATTORNEY ON YOUR SIDE IS IMPORTANT. CONTACT THE TUCSON DEFENDERS TODAY FOR A FREE CONSULTATION ABOUT YOUR CASE. 520-585-5757.
Tucson Criminal Defense Lawyer Child pornography is a form of child sexual exploitation, and is a very serious crime, both at the state and federal level. Federal law defines child pornography as any visual depiction of sexually explicit conduct involving a minor (persons less than 18 years old). Images of child pornography are also referred to as child sexual abuse images. Child pornography is a serious crime that victimizes children and is met with very severe punishments if convicted. If you have been charged with any crime related to child pornography, you need an experienced criminal defense attorney representing you in court. Arizona Child Pornography laws Under Arizona law, ARS 13-3553 governs the conduct typically referred to as child pornography. Note that the law covers everything from simply purchasing or possessing such unlawful depictions all the way up to selling, disseminating, and even creating such depictions. ARS 13-3553. Sexual exploitation of a minor; evidence; classification A. A person commits sexual exploitation of a minor by knowingly: 1. Recording, filming, photographing, developing or duplicating any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct. 2. Distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct. B. If any visual depiction of sexual exploitation of a minor is admitted into evidence, the court shall seal that evidence at the conclusion of any grand jury proceeding, hearing or trial. C. Sexual exploitation of a minor is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to section 13-705. Under Arizona law, the penalty for sexual exploitation of a child is most affected by whether the child is under fifteen years of age, a designation that makes the offense a Dangerous Crime Against Children (DCAC). Depending on prior criminal history, mitigating and aggravating circumstances, a Class 2 felony can be punished by anywhere from 3-35 years in prison in Arizona. Federal Child Pornography Laws In order for Federal law to apply, a person's receipt or distribution of prohibited material must in some way involve interstate or foreign commerce. This has notoriously been broadly interpreted and will almost certainly be triggered by any use of the internet, mail, or other related means. 18 U.S.C. 2251 - Sexual exploitation of children(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed. (b) Any parent, legal guardian, or person having custody or control of a minor who knowingly permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct shall be punished as provided under subsection (e) of this section, if such parent, legal guardian, or person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed. (c)(1) Any person who, in a circumstance described in paragraph (2), employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, any sexually explicit conduct outside of the United States, its territories or possessions, for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e). (2) The circumstance referred to in paragraph (1) is that-- (A) the person intends such visual depiction to be transported to the United States, its territories or possessions, by any means, including by using any means or facility of interstate or foreign commerce or mail; or (B) the person transports such visual depiction to the United States, its territories or possessions, by any means, including by using any means or facility of interstate or foreign commerce or mail. (d)(1) Any person who, in a circumstance described in paragraph (2), knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering-- (A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct; or (B) participation in any act of sexually explicit conduct by or with any minor for the purpose of producing a visual depiction of such conduct; shall be punished as provided under subsection (e). (2) The circumstance referred to in paragraph (1) is that-- (A) such person knows or has reason to know that such notice or advertisement will be transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed; or (B) such notice or advertisement is transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mailed. (e) Any individual who violates, or attempts or conspires to violate, this section shall be fined under this title and imprisoned not less than 15 years nor more than 30 years, but if such person has one prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward, or sex trafficking of children, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 25 years nor more than 50 years, but if such person has 2 or more prior convictions under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to the sexual exploitation of children, such person shall be fined under this title and imprisoned not less than 35 years nor more than life. Any organization that violates, or attempts or conspires to violate, this section shall be fined under this title. Whoever, in the course of an offense under this section, engages in conduct that results in the death of a person, shall be punished by death or imprisoned for not less than 30 years or for life. 18 U.S.C. 2252 - Certain activities relating to material involving the sexual exploitation of minors (a) Any person who-- (1) knowingly transports or ships using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means including by computer or mails, any visual depiction, if-- (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; (2) knowingly receives, or distributes, any visual depiction using any means or facility of interstate or foreign commerce or that has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or through the mails, if-- (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct; (3) either-- (A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States, or in the Indian country as defined in section 1151 of this title, knowingly sells or possesses with intent to sell any visual depiction; or (B) knowingly sells or possesses with intent to sell any visual depiction that has been mailed, shipped, or transported using any means or facility of interstate or foreign commerce, or has been shipped or transported in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported using any means or facility of interstate or foreign commerce, including by computer, if-- (i) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii)such visual depiction is of such conduct; or (4) either-- (A) in the special maritime and territorial jurisdiction of the United States, or on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States, or in the Indian country as defined in section 1151 of this title, knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction; or (B) knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed, or has been shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce, or which was produced using materials which have been mailed or so shipped or transported, by any means including by computer, if-- (i)the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (ii)such visual depiction is of such conduct; shall be punished as provided in subsection (b) of this section. (b)(1)Whoever violates, or attempts or conspires to violate, paragraph (1), (2), or (3) of subsection (a) shall be fined under this title and imprisoned not less than 5 years and not more than 20 years, but if such person has a prior conviction under this chapter, section 1591, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, or sex trafficking of children, such person shall be fined under this title and imprisoned for not less than 15 years nor more than 40 years. (2) Whoever violates, or attempts or conspires to violate, paragraph (4) of subsection (a) shall be fined under this title or imprisoned not more than 10 years, or both, but if any visual depiction involved in the offense involved a prepubescent minor or a minor who had not attained 12 years of age, such person shall be fined under this title and imprisoned for not more than 20 years, or if such person has a prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years. (c) Affirmative Defense.--It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) that the defendant-- (1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and (2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof-- (A) took reasonable steps to destroy each such visual depiction; or (B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction. Defenses in Child Pornography Cases Lack of intent/knowledge - Being convicted of child pornography requires that the unlawful actions be done “knowingly” and "intentionally." Accidentally engaging in such behavior (e.g. downloading a video believed to be of adult sexual acts) does not violate the law. Coerced or Undue confessions - If the law enforcement officers violate a suspect's Fifth or Sixth Amendment rights to remain silent and have an attorney present for questioning, there may be an issue with using any admissions or confessions made to police. No minor was actually depicted in the image or video in question - The government must prove, beyond a reasonable doubt, that the person depicted in the image is in fact a minor. This can actually be a tough task if the identity of the depicted person is unknown. Unlawful Searches and Seizures - If law enforcement officers violated a defendant's Fourth Amendment rights to be free from unlawful searches and seizures, the evidence obtained during such unauthorized searches may be excluded in court. IF YOU OR A LOVED ONE HAS BEEN ACCUSED OF A CRIME INVOLVING CHILD PORNOGRAPHY, YOU NEED AN EXPERIENCED AND KNOWLEDGEABLE ATTORNEY ON YOUR SIDE. CALL A TUCSON CRIMINAL DEFENSE ATTORNEY TODAY TO DISCUSS YOUR RIGHTS, OPTIONS, POSSIBLE DEFENSES AND TO GET STARTED PROTECTING YOURSELF FROM SERIOUS CRIMINAL PENALTIES. 520-585-5757 RELATED ARTICLES: Tucson Sex Crimes Defense Attorney Federal Criminal Defense Lawyer - Tucson Tucson Prostitution/Solicitation Lawyer Tucson Child Sex Crimes Lawyer Arizona Assault Crimes Attorney - Tucson Arizona Human/Sex Trafficking Lawyer |
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November 2024
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