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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16527
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I was convicted of a domestic violence in 1994 while in the

Customer Question

I was convicted of a domestic violence in 1994 while in the Army. My question is this ... Can I get my record cleared ? My wife and I are still together. I haven't drank in 9 1/2 years and we now help people work on saving their marriages. I was looking to get back into the Military but this conviction has stop that ( My gun rights are revoked ).
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Dimitry Esquire replied 4 years ago.
Thank you for your question. In what state did the conviction take place in, Minnesota?
Customer: replied 4 years ago.
Arizona,
Expert:  Dimitry Esquire replied 4 years ago.
Thank you for your follow-up.

What you must do is contact an Arizona attorney and see if he can help you 'set aside' your conviction (which is Arizona's equivalent motion to a record expungement or a record seal). A.R.S. § 13-907 permits a defendant to request a "set aside" of his conviction under certain circumstances. If successful, a records check will still reflect that the defendant was originally charged, and convicted, but that the judgment was later set aside and an order of dismissal was entered. However be careful as there are some limitations. A set aside is not available to a person convicted of a criminal offense:
(1) involving the infliction of serious physical injury,
(2) involving the use or exhibition of a deadly weapon or dangerous instrument,
(3) for which the person is required or ordered by the court to register as a sex offender,
(4) for which there has been a finding of sexual motivation,
(5) in which the victim is a minor under 15 years of age, and
(6) other circumstances as may apply.


Edited by Dimitry Alexander Kaplun on 7/2/2010 at 3:16 AM EST
Customer: replied 4 years ago.
That's $ 38.00 I'm not sure was well spent. You tell me maybe I can get it fixed and I need to get a lawyer in AZ. I should have asked a car question. I'm sorry if this sounds harsh but I was hoping to get some info that I didn't know.
Expert:  Dimitry Esquire replied 4 years ago.
I understand, but since I do not know what your domestic violence was based on, I cannot be more specific--if your DV case was based on serious physical injury, then you will not be able to set it aside. What you may not have known was the statute I linked to in my post--read it for yourself and see if you fit in any of the exemptions. If you do not, you will be able to get it sealed.

Good luck.

Edited by Dimitry Alexander Kaplun on 7/2/2010 at 3:28 AM EST
Customer: replied 4 years ago.
Relist: Answer quality.
I would like to get an answer from a lawyer that is an expert in restoring gun rights / domestic violence.
Expert:  Zoey_ JD replied 4 years ago.
Hello,

I think I should be able to amplify this. But first, since this happened when you were in the military, were you charged in State or Federal Court?
Customer: replied 4 years ago.
State court.
Expert:  Zoey_ JD replied 4 years ago.
Jacustomer,

Unfortunately, under the Federal Gun Control Act, (18 U.S.C. § 922(g)(9), it is unlawful for an individual convicted of a state or federal "misdemeanor crime of domestic violence" to "ship, transport, possess or receive firearms or ammunition."

The federal government defines a "misdemeanor crime of violence," as an offense that:

"has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim."

However, the law is clear that if you can get the state to expunge, set aside, or pardon your offense, this act would not bar you from getting your gun rights back. I'm assuming there are no protective orders out against you or any other reason not already mentioned in your post. You can see what other things can cost people their gun rights in the above statute.

There used to be, but no longer is, any provision for a Federal expungement. So the previous expert was correct in that In order to get your gun rights back you would have to get the state of Arizona to either expunge, set aside or pardon your misdemeanor conviction. States are not generous about what they will expunge. As a rule, they want their penalties to stick.

I have looked at the Arizona Expungement Law, and it appears that you would be eligible to have your conviction set aside. Note that it's discretionary. Being eligible does not mean it will be granted. However, based on the fact that it has been a very long time since you have been in trouble, that you have 9 1/2 years of sobriety behind you and that you and your wife are still together, you would appear to have a decent chance here. You can find a plain English version of your state's expungement law here. You will have to petition the court, and it will tell you broadly how to do that. A lawyer is not necessary for this if you feel comfortable handling it yourself. I have found a form for Maricopa County on the web, and I imagine the clerk of the court in other counties will have something similar..


If your petition is rejected you can find information about applying for a pardon from the governor, which you would have to obtain throught the Arizona
Board of Executive Clemency. Again, you wouldn't need a lawyer to accomplish this, although there are lawyers who specialize in pardons, expungements and gun rights. The Board's website appears to be down right now but it's www.azboec.gov/

Good luck.

___________

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your State for specific legal advice.

Edited by FranL on 7/2/2010 at 4:31 AM EST
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16527
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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