SEE ALSO: Dismissal / Set-Aside / Vacate / Shield

Dismissals, set-asides, vacate, and shields are other remedies offered by courts in some states. Many of these remedies mean that most employers cannot see your criminal record.

Dismissals, set-asides, vacate, and shield laws vary widely among the states that have them.

Alaska – Set-Aside

What is a Set-Aside?

Alaska offers “set-asides” of adult criminal records, but only for suspended imposition of sentence (SIS).

Who is Eligible for Set Aside?

You are eligible for a set-aside only if you received a suspended imposition of sentence. You must complete probation first. But you cannot get a set-aside for serious or violent crimes, including murder, DUI, stalking, removing a child from the state, human trafficking, sex offenses, and offenses with use of a firearm.

If you are uncertain whether you are eligible for set-aside, consult an attorney.

What Effect Does Set Aside Have?

Once an Alaskan court grants a set-aside for suspended imposition of sentence, your conviction is not sealed or expunged. The set-aside is noted in the record. A conviction that has been set-aside may be used to deny a license if the offense is "substantially related" to the license. However, a conviction that has been set-aside cannot be used for impeachment or enhanced sentencing.

Once a court grants a set-aside for a suspended entry of judgment, when you have successfully completed probation, the court dismisses the charges. In this case, there is no conviction on the record, only the dismissal of your case. Alaska law prohibits the court from publishing any record of the dismissal on a public website.

When Can I Apply for a Set Aside?

You can apply for a set-aside after a suspended imposition of sentence or a suspended entry of judgment after you have successfully completed your probation.

How Do I Apply for Set Aside?

After you complete probation, simply ask the judge for a set-aside. The law in Alaska requires a judge to set aside a conviction and give you a certificate of set-aside unless there is some specific reason to deny it. If that is the case, the court must tell you and hold a hearing. The state prosecutor must show "good cause" to deny a set-aside. In other words, the state has the burden of proof, not you.

More Information About Set Aside

For more information about set-aside, visit the Alaska Courts FAQs website here: Frequently Asked Questions.  

For helpful information about Suspended Imposition of Sentence, visit the Alaska Courts website here: Suspended Imposition of Sentence

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Arizona - Set-Aside

What is a Set-Aside?

Arizona does not offer "sealing" or "expungement" of adult criminal records, but it does offer "set-aside." A set-aside does not delete your criminal record. Instead, Arizona adds a notation next to the conviction record stating that you have received a set-aside. This means that the judgment of conviction has been vacated. Employers, landlords, and banks will see both the record of conviction and of the set-aside.

Who is Eligible for a Set-Aside?

In general, you are eligible to have a record set-aside for a misdemeanor or felony conviction if you have successfully completed probation or your sentence and you were officially discharged. There is no limit to how many set-asides you can apply for. You must apply separately for each case or conviction.    

You are not eligible for a set-aside if the conviction involved any of the following:

  • serious physical injury;
  • use of a deadly weapon or dangerous instrument;
  • a victim under the age of 15 years;
  • certain traffic violations; or
  • sexual offenses.

In addition, all of the following must be true:

  • You do not have any charges pending against you;
  • You have paid all fines and restitution; and
  • You have waited two years after discharge from either sentencing or probation to apply for a set-aside if you have more than one felony conviction.

If you are uncertain whether you are eligible for a set-aside, consult with an attorney.

What Effect Does a Set-Aside Have?

Once an Arizona court grants a set-aside, the Department of Public Safety (DPS) will add a notation next to the conviction that it has been set-aside. That means that the court has set-aside or vacated the judgment of guilt, restored your civil rights, and freed you from all penalties and disabilities.

A set-aside does not release you from some motor-vehicle restrictions. Getting a conviction set-aside will not affect your driver's license status.

Although a conviction is set-aside, all of the following remain in effect:

  • The conviction can be used as a predicate offense in future prosecutions.
  • If applicable, you must still register as a sex offender.
  • The conviction may be admissible in court as a prior conviction.
  • The conviction may be counted as an element of another offense.
  • If you are asked about your record, you are still required to tell about the conviction.

A set-aside is good to apply for, but it has limitations. Your conviction remains a public record because Arizona law considers it a matter of public protection.

When Can I Apply for a Set-Aside?

You can apply for a set-aside of a conviction only after you have completed your probation or your sentence and are officially discharged. You must have paid all fines and fees, but you can apply for a set-aside even if you have not paid all restitution. You must have no charges pending.

If you have been convicted of only one felony and completed your incarceration, there is no wait to apply for a set-aside. If you have more than one felony conviction, you must wait two years after discharge to apply for a set-aside.

How Do I Apply for a Set-Aside?

Here are the 10 steps to apply for a set-aside:

  1. Complete the "Statement of Absolute Discharge" form. To access the form and instructions, visit the Arizona's Department of Corrections (DOC) website here: Statement of Absolute Discharge.
  2. Get a "Statement of Absolute Discharge" from the Arizona Department of Corrections (DOC) by sending in a written request. The DOC does not accept phone requests. You will get your statement in the mail within 14-21 days. For further assistance, email ADCABSDISCH@AZADC.gov.
  3. Get the correct form to apply for a set-aside. Call your county-court clerk where you will file the application and find out if the court accepts the state forms or has its own forms. If the court accepts the state forms, you can access the form on the Arizona Courts website here: Arizona Judicial Branch Forms. Go to the chart at the bottom and download the "application to set-aside conviction" form.

    If your court does not, it probably has set-aside forms to download online. For example, Maricopa County has its own forms with instructions available online. To access the forms, visit the Maricopa Superior Court website here: Application to Set-Aside.
  4. Complete the correct set-aside form.
  5. Make copies of everything.
  6. Go to the clerk of the Superior Court in the Arizona County where you were charged. You must file your application for a set-aside with any supporting documents with the clerk.
  7. Send another complete application to the judge and to the county attorney. Your application for a set-aside is a "motion" that the judge will decide.

    For more information about the procedures, visit the Arizona Court website here: Arizona Judicial Branch Forms. Scroll down to the very bottom of the chart and download the "Procedures" form, GNCR10F 1.
  8. Pay the fee if required. There is no fee for a set-aside itself, but there is usually a court fee to file a motion or petition.
  9. Follow the instructions to deliver copies to the judge and the county attorney, either by mail or in person.
  10. Wait several months. If you ask for a hearing, the court may hold a hearing on your application for a set-aside. If it does not hold a hearing, the court will notify you when the judge has made a decision. Under Arizona law, the judge has discretion.

    If the judge denies your application for a set-aside, you can file for "reconsideration." Usually, the form that you filled out to apply for a set-aside is the same form you use to ask for reconsideration.

    Arizona also offers reduction of some felonies to a misdemeanor. If you have an undesignated Class 6 felony conviction on your record, you can apply to have it reduced to a misdemeanor. To be eligible for a reduction, you cannot have two felony convictions and the class 6 felony must not be a dangerous offense. This means the felony did not result in serious injuries and did not involve the use of a deadly weapon or dangerous instrument.

    To apply for reduction, visit the Arizona Courts website here: Arizona Judicial Branch Forms
     

More Information About a Set-Aside 

For more information about set-asides and class 6 felony reduction in Arizona, visit the related links.

Related Links

Arizona Court Help
The Papillon Foundation - Arizona Criminal Record Resources
Collateral Consequences Resource Center



 


 

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Idaho – Set-Aside

What is a Set- Aside?

In Idaho, if you successfully complete probation, the judge may allow you to change your plea to "not guilty." Then the judge will set aside the conviction and dismiss the charges. Set-aside restores all civil rights, including gun rights. However, set-aside is not available for treason, murder, or offenses that require sex-offender registration and a set-aside does not expunge the record. Set-aside restores all civil rights, including gun rights. However, set-aside is not available for treason, murder, or offenses that require sex-offender registration and a set-aside does not expunge the record.

Idaho – What Effect Does Set Aside Have?

An Idaho court may grant expungement or other relief, such as set-asides, in certain cases. Once an Idaho court grants an expungement, for example, in a human trafficking or prostitution case, the court also orders all state agencies, including the Bureau of Criminal Identification (BCI), to expunge their records. When an Idaho court grants a set-aside for deferred disposition or suspended judgment, there is no expungement of the record.

How Do I Apply for Set Aside?

Here are the five steps to set aside a deferred disposition or suspended sentence, reduce from felony to misdemeanor, expunge juvenile records, or expunge a prostitution or human trafficking conviction:
 

  1. Go to the clerk of the court in the county where you were charged.
  2. Ask for the appropriate forms.
  3. File a petition or motion, with supporting documents, with the clerk. There may be other requirements, such as notice to the prosecutor that you must complete.
  4. Pay the filing fee.
  5. Attend the hearing. The court may hold a hearing on your petition. If it does, you must attend and be prepared to answer the judge's questions. If it does not, the court will notify you when the judge has decided what to do.

If you are unsure of the process, consult an attorney or Legal Aid of Idaho.

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Nebraska - Set-Aside

What is a Set-Aside?

Nebraska offers "set-aside" for adult convictions. A set-aside is an order by a court that means you have successfully completed your sentence and you are rehabilitated. A set-aside does not remove a conviction on your record. Instead, Nebraska adds a notation that the record is set-aside.

Who is Eligible for a Set Aside?

In general, you are eligible to have a conviction set aside only if the court sentenced you to probation or to pay a fine. The court considers your behavior after the conviction, the likelihood of future criminal behavior, and any other relevant information about you. The court decides whether a set-aside is in your best interest and "consistent with the public welfare." You are not eligible for a set-aside if you were incarcerated.

If you were convicted of prostitution or another crime because you were a victim of human trafficking, you are eligible for a set-aside. Then once you get the set-aside, you can ask the court to seal that record.

If you get a pardon, you can ask the court to seal your record.

If you are uncertain whether you are eligible for a set-aside, consult with an attorney.

What Effect Does a Set-Aside Have?

Once a Nebraska court grants a set-aside, the court orders all state agencies to make an addendum to their records showing that your arrest or conviction has been set-aside. A set-aside removes all civil disabilities and disqualifications from the conviction. However, the arrest or conviction record is not sealed from public view and it is not destroyed.

Although a conviction is set-aside, all of the following remain in effect:

  • The conviction can be used against you to enhance a later sentence.
  • The conviction can be used to impeach you if you testify.
  • The conviction can deny or revoke a law enforcement training certification.
  • A set-aside does not take away an obligation to register as a sex offender.

When Can I Apply for a Set-Aside?

You can apply for a set-aside of a conviction only after you have completed your sentence. You must wait until you have completed probation or parole or other state supervision program, and after you have paid all fines, costs, and restitution.

If you were convicted of prostitution and you were the victim of human trafficking, there is no wait to apply for a set-aside or sealing.

How Do I Apply for a Set-Aside?

Here are the six steps to apply for a set-aside:

  1. Collect all of the necessary documents relating to your criminal history. Depending on the local rules of the district or county court where you were charged, you may have to provide certified copies of your charges, arrests, and sentences.
  2. Complete the set-aside petition form from the court clerk or online. To access the petition online, visit the Nebraska Supreme Court website here: Petition to Set Aside Criminal Conviction. For instructions on completing the petition, visit the supreme court website here:  Instructions for Completing the Motion to Set Aside a Criminal Conviction. Note, check with the court clerk first to make sure you get the right forms.
  3. Make copies of everything.
  4. File your petition, with the supporting documents, with the clerk.
  5. Send another complete petition to the prosecutor. Nebraska law requires that the prosecutor is notified and has the opportunity to object to your set-aside petition.
  6. Pay the fee to the clerk, if required. Acceptable forms of payment include cash, credit card, money order, or certified check.

The court will hold a hearing on your petition. You must go to the hearing to get your conviction set aside. For helpful information about set-aside hearings, visit the Nebraska Supreme Court's website here: Nebraska Judicial Branch. 

More Information About Set-Aside

For more information about set-asides in Nebraska, visit the related links:

Related Links

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Oregon – Set-Aside

What is a Set-Aside?

Oregon does not offer “sealing” or "expungement" of adult criminal records, but it does offer "set asides.” When a record is set aside in Oregon, the court sets aside the record of conviction and the applicant is deemed not to have been previously convicted. The court orders the record of the conviction and all other official records, including law enforcement records, to be sealed.

Who is Eligible for Set-Aside?

You are eligible to have your arrest record set aside, if:

  • The arrest happened more than one year ago and no accusatory instrument was filed; or
  •  You were acquitted or the charge was dismissed.

The following convictions are eligible to be set aside three years after the date of arrest, so long as other criteria are met:

  • Any misdemeanor, Class C felony, or felony punishable as a misdemeanor;
  • Unlawful possession of a controlled substance classified as Schedule I;
  • An offense constituting a violation under state law or local ordinance; or
  • An offense committed before January 1, 1972, that, if committed after that date, would qualify.

You are eligible to have certain Class B felony convictions set aside if 20 or more years have passed since the date of conviction or release from imprisonment, whichever is later.

You are not eligible to have your conviction set aside if you are still serving your sentence.

If your probation was revoked, you must wait 10 years from the date of revocation to apply for a set aside.

You cannot set aside the following types of offenses:

  • Criminal mistreatment in the second degree if the victim was 65 years of age or older;
  • Criminal mistreatment in the first degree if the victim was 65 years of age or older or if the offense constitutes child abuse;
  • Endangering the welfare of a minor, when the offense constitutes child abuse;
  • Criminally negligent homicide;
  • Assault in the third degree;
  • Most sex crimes (see ORS 137.225 for exceptions);
  • Convictions for state or municipal traffic offenses; or
  • Class B felonies that are classified as a person felony or was a firearms used in felony conviction.

In addition to the waiting periods, you must also:

  • Have completed your sentence;
  • Have no convictions, arrests, criminal citations, or charges except for traffic violations since the date of the conviction you are seeking to set aside; and
  • Have no convictions within the preceding 10 years, other than motor vehicle violations, including any convictions that have been set aside.

What Effect Does Set-Aside Have?

Once the court grants your set aside, you are legally considered not to have been arrested, cited, charged, or convicted in most instances. The court will issue an order sealing the record of conviction and all other official records relating to it, including the arrest record.

Arrest or conviction records that have been set aside may still be available by court order.

Once your record is expunged, in most cases you can legally deny being arrested or convicted.

When Can I Apply for a Set Aside?

You can apply for a set aside of an arrest record that results in an acquittal or dismissal any time after the acquittal or dismissal.

You can apply for a set aside of an arrest record one year after the arrest if no accusatory instrument was filed.

You can apply for a set aside of a conviction record for the following offenses three years after the date of arrest, so long as additional criteria are met:

  • Any misdemeanor, Class C felony, or felony punishable as a misdemeanor;
  • Unlawful possession of a controlled substance classified as Schedule I;
  • An offense constituting a violation under state law or local ordinance; or
  • An offense committed before January 1, 1972, that, if committed after that date, would qualify.

You can apply for a set aside for a Class B felony conviction 20 years after the date of conviction or release from imprisonment, whichever is later.

You cannot apply for a set aside if you have not completed your sentence. If your probation is revoked, you must wait 10 years from the date of revocation to apply for a set aside.

You cannot set aside the following types of records:

  • Criminal mistreatment in the second degree if the victim was 65 years of age or older;
  • Criminal mistreatment in the first degree if the victim was 65 years of age or older or if the offense constitutes child abuse;
  • Endangering the welfare of a minor, when the offense constitutes child abuse;
  • Criminally negligent homicide;
  • Assault in the third degree;
  • Most sex crimes (see ORS 137.225 for exceptions);
  • Convictions for state or municipal traffic offenses; or
  • Class B felonies that are classified as a person felony or was a firearms used in felony conviction.

In addition to the waiting periods, you must also:

  • Have completed your sentence;
  • Have no convictions, arrests, criminal citations, or charges except for traffic violations since the date of the conviction you are seeking to set aside; and
  • Have no convictions within the preceding 10 years, other than motor vehicle violations, including any convictions that have been set aside.

How Do I Apply for Set Aside?

Here are the 10 steps to apply for a set aside of a conviction:

  1. Complete the Motion and Affidavit to Set Aside a Conviction. Do not sign the Affidavit until you are standing in front of a notary public or the clerk of the court in which you were convicted.
  2. Get your fingerprints taken at your local police department or fingerprinting facility.
  3. Pay the fingerprinting fee.  
  4. Include a copy of your police report.
  5. Obtain a copy of your court records, including the charging instrument or indictment, the order of dismissal, judgment, or sentencing order from your case. The court may charge a fee for the documents.
  6. Make copies of everything, including one complete set for yourself.
  7. File a copy of your documents with the court in which you were convicted.
  8. Pay the $281.00 filing fee to request a set aside from the court. If the court denies your application, you will not get this money back.
  9. File a copy of your documents and the original fingerprint card with the District Attorney for the county in which you were convicted.
  10. Pay the $80.00 fee to process your fingerprints with the State Police Department. This payment should be included in the packet you provide to the District Attorney.

It can take up to six months for the District Attorney to investigate your case to determine whether you are eligible for a set aside. The District Attorney will send the results of their investigation to the Court. If the Court decides to grant your set aside, they will send a copy of the Order to Seal to law enforcement agencies and your court and arrest records will be sealed. If the Court decides not to grant your set aside, they will send you a letter.

More Information About Set Aside

For more information about how to set aside your record from various counties’ court in Oregon, visit the related links.

Related Links

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