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REFERENCE TITLE: civil rights restoration; application; procedures |
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State of Arizona House of Representatives Fifty-fourth Legislature First Regular Session 2019
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HB 2080 |
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Introduced by Representative Allen J
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AN ACT
providing for transferring and renumbering; Amending section 8‑249, Arizona Revised Statutes, as transferred and renumbered; amending section 13‑904, Arizona Revised Statutes; Repealing section 13‑905, Arizona Revised Statutes; amending section 13‑905, Arizona Revised Statutes, as renumbered; repealing section 13‑906, Arizona Revised Statutes; amending title 13, chapter 9, Arizona Revised Statutes, by adding a new section 13‑906; amending section 13‑907, Arizona Revised Statutes, as renumbered; repealing section 13‑908, Arizona Revised Statutes; amending title 13, chapter 9, Arizona Revised Statutes, by adding a new section 13‑908; repealing sections 13‑909 and 13‑910, Arizona Revised Statutes; amending title 13, chapter 9, Arizona Revised Statutes, by adding a new section 13‑910; repealing section 13‑911, Arizona Revised Statutes; amending sections 13‑2604, 13‑3101 and 16‑1011, Arizona Revised Statutes; relating to the restoration of civil rights.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13‑912.01, Arizona Revised Statutes, is transferred and renumbered for placement in title 8, chapter 2, article 4, Arizona Revised Statutes, as section 8‑249 and, as so renumbered, is amended to read:
8-249. Restoration of civil rights; persons adjudicated delinquent
A. A person who was adjudicated delinquent and whose period of probation has been completed may have the right to possess or carry a gun or firearm restored by the judge who discharges the person at the end of the person's term of probation.
B. A person who was adjudicated delinquent and who has been discharged from probation, on proper application, may have the right to carry or possess a gun or firearm restored by the judge of the juvenile court in the county where the person was adjudicated delinquent or the judge's successors. The clerk of the superior court shall process the application on the request of the person involved or the person's attorney. The applicant shall serve a copy of the application on the county attorney.
C. If the person's adjudication was for a dangerous offense under section 13‑704, a serious offense as defined in section 13‑706, burglary in the first degree, burglary in the second degree or arson, the person may not file for the restoration of the right to possess or carry a gun or firearm until the person attains thirty years of age. If the person's adjudication was for any other felony offense, the person may not file for the restoration of the right to possess or carry a gun or firearm for two years from the date of the person's discharge.
Sec. 2. Section 13-904, Arizona Revised Statutes, is amended to read:
13-904. Suspension of civil rights and occupational disabilities
A. A conviction for a felony suspends the following civil rights of the person sentenced:
1. The right to vote.
2. The right to hold public office of trust or profit.
3. The right to serve as a juror.
4. During any period of imprisonment any other civil rights the suspension of which is reasonably necessary for the security of the institution in which the person sentenced is confined or for the reasonable protection of the public.
5. The right to possess a gun or firearm.
B. Persons sentenced to imprisonment shall not thereby be rendered incompetent as witnesses on the trial of a criminal action or proceeding, or incapable of making and acknowledging a sale or conveyance of property.
C. A person sentenced to imprisonment is under the protection of the law, and any injury to his person, not authorized by law, is punishable in the same manner as if the person was not convicted and sentenced.
D. The conviction of a person for any offense shall not work forfeiture of any property, except if a forfeiture is expressly imposed by law. All forfeitures to the state, unless expressly imposed by law, are abolished.
E. A person shall not be disqualified from employment by this state or any of its agencies or political subdivisions solely because of a prior conviction for a felony or misdemeanor within or without this state. A person may be denied employment by this state or any of its agencies or political subdivisions by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment sought.
F. Subsection E of this section is not applicable to any law enforcement agency.
G. Any complaints concerning a violation of subsection E of this section shall be adjudicated in accordance with the procedures set forth in title 41, chapter 6 and title 12, chapter 7, article 6.
H. A person who is adjudicated delinquent under section 8‑341 for a felony does not have the right to carry or possess a gun or firearm.
Sec. 3. Repeal
Section 13-905, Arizona Revised Statutes, is repealed
Sec. 4. Section 13-907, Arizona Revised Statutes, is renumbered as section 13-905 and, as so renumbered, is amended to read:
13-905. Setting aside judgment of convicted person on discharge; application; release from disabilities; firearm possession; exceptions
A. Except as provided in subsection K 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 court to have the judgment of guilt set aside. The convicted person shall be informed of this right at the time of sentencing.
B. The person or the person's attorney or probation officer may apply to set aside the judgment. The clerk of the court may not charge a filing fee for an application to have a judgment of guilt set aside.
C. The court shall consider the following factors when determining whether to set aside the conviction:
1. The nature and circumstances of the offense that the conviction is based on.
2. The applicant's compliance with the conditions of probation, the sentence imposed and any state department of corrections' rules or regulations, if applicable.
3. Any prior or subsequent convictions.
4. The victim's input and the status of victim restitution, if any.
5. The length of time that has elapsed since the completion of the applicant's sentence.
6. The applicant's age at the time of the conviction.
7. Any other factor that is relevant to the application.
D. If the application is granted, the court shall set aside the judgment of guilt, dismiss the complaint, information or indictment 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, 28‑3305, 28‑3306, 28‑3307, 28‑3308, 28‑3312 or 28‑3319.
2. The game and fish commission pursuant to section 17‑314 or 17‑340.
E. A conviction that is set aside may be:
1. Used as a conviction if the conviction would be admissible had it not been set aside.
2. Alleged as an element of an offense.
3. Used as a prior conviction.
4. Pleaded and proved in any subsequent prosecution of the person by this state or any political subdivision of this state for any offense.
5. Used by the department of transportation in enforcing section 28‑3304, 28‑3305, 28‑3306, 28‑3307, 28‑3308, 28‑3312 or 28‑3319 as if the judgment of guilt had not been set aside.
F. The clerk of the court must notify the department of public safety if a conviction is set aside. The department of public safety must update the person's criminal history with an annotation that the conviction has been set aside but may not redact or remove any part of the person's record.
G. This section does not:
1. Require a law enforcement agency to redact or remove a record or information from the record of a person whose conviction is set aside.
2. Preclude the department of public safety or the board of fingerprinting from considering a conviction that has been set aside when evaluating an application for a fingerprint clearance card pursuant to section 41‑1758.03 or 41‑1758.07.
H. If the court denies an application to have a judgment of guilt set aside, the court shall state its reasons for the denial in writing and on the record.
I. A victim has the right to be present and be heard at any proceeding in which the defendant has filed an application to have a judgment of guilt set aside pursuant to this section. If the victim has made a request for postconviction notice, the attorney for the state shall provide the victim with notice of the defendant's application and of the rights provided to the victim in this section.
J. Notwithstanding section 13‑905 or 13‑906 13‑910, if a conviction is set aside, the person's right to possess a gun or firearm is restored. This subsection does not apply to a person who was convicted of a serious offense as defined in section 13‑706.
K. This section does not apply to a person who was convicted of any of the following:
1. A dangerous offense.
2. An offense for which the person is required or ordered by the court to register pursuant to section 13‑3821.
3. An offense for which there has been a finding of sexual motivation pursuant to section 13‑118.
4. An offense in which the victim is a minor under fifteen years of age.
5. An offense 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.
Sec. 5. Repeal
Section 13-906, Arizona Revised Statutes, is repealed.
Sec. 6. Title 13, chapter 9, Arizona Revised Statutes, is amended by adding new section 13‑906, to read:
13-906. Restoration of civil rights; process; definition
A. At the time of sentencing, the court shall inform a person in writing of the person's right to the restoration of civil rights on final discharge.
B. The clerk of the court shall notify the department of public safety if the court restores the person's civil rights, including whether a person's right to possess a firearm is restored. The department of public safety shall update the person's criminal history with an annotation that the person's civil rights have been restored and any exceptions ordered but may not redact or remove any part of the person's record.
C. The restoration of a person's civil rights does not preclude the department of public safety or the board of fingerprinting from considering a conviction of a person whose civil rights have been restored when evaluating an application for a fingerprint clearance card pursuant to section 41-1758.03 or 41-1758.07.
D. If the court denies an application for the restoration of a person's civil rights, the court shall state its reasons for the denial in writing.
E. If the restoration of a person's civil rights is discretionary with the court, a victim has the right to be present and be heard at any proceeding in which the defendant files an application for the restoration of civil rights. If the victim has made a request for postconviction notice, the attorney for the state shall provide the victim with notice of the defendant's application and of the rights provided to the victim in this section.
F. For the purposes of this section, "final discharge" means the completion of probation or the receipt of an absolute discharge from the state department of corrections or the United States bureau of prisons.
Sec. 7. Section 13-912, Arizona Revised Statutes, is renumbered as section 13‑907, and, as so renumbered, is amended to read:
13-907. Automatic restoration of civil rights for first offenders; exception; definition
A. on final discharge, any person who has not previously been convicted of any other a felony offense shall automatically be restored any civil rights that were lost or suspended by as a result of the conviction if the person both:
1. Completes a term of probation or receives an absolute discharge from imprisonment.
2. pays any fine or victim restitution imposed.
B. A person who is entitled to the restoration of any civil rights pursuant to this section is not required to file an application pursuant to section 13‑908.
B. C. This section does not apply to a person's right to possess weapons a firearm as defined in section 13‑3101 unless the person applies to a court pursuant to section 13‑905 or 13‑906. The court may order the restoration of the right to possess a firearm pursuant to section 13‑910.
D. For the purposes of this section, "final discharge" means the completion of probation or the receipt of an absolute discharge from the state department of corrections or the United States bureau of prisons.
Sec. 8. Repeal
Section 13-908, Arizona Revised Statutes, is repealed.
Sec. 9. Title 13, chapter 9, Arizona Revised Statutes, is amended by adding a new section 13‑908, to read:
13-908. Restoration of civil rights; application; definition
A. On final discharge, a person who has previously been convicted of a felony or who has not paid any victim restitution that was imposed may apply to the superior court to have the person's civil rights restored. The restoration of civil rights is in the discretion of the judicial officer.
B. The person or the person's attorney or probation officer may file the application for the restoration of civil rights. The clerk of the court may not charge a filing fee for an application. The clerk of the court shall forward a copy of the application to the county attorney.
C. A person whose civil rights were lost or suspended as a result of a felony conviction in a United States district court and whose period of probation has been completed may file the application for restoration of civil rights in the county in which the person now resides. The person shall file an affidavit of discharge from the judicial officer who discharged the person at the end of the term of probation.
D. A person who has received an absolute discharge from imprisonment and who files an application for the restoration of civil rights shall file with the application a certificate of absolute discharge from the director of the state department of corrections.
E. A person whose civil rights were lost or suspended as a result of a felony conviction in a United States district court and who has received an absolute discharge from imprisonment in a federal prison shall file the application for the restoration of civil rights in the county in which the person now resides. The person shall file with the application a certificate of absolute discharge from the director of the federal bureau of prisons, unless it is shown to be impossible to obtain a certificate.
F. If the court grants the application, the court shall restore the person's civil rights.
G. This section does not apply to a person's right to possess a firearm as defined in section 13-3101. The court may order the restoration of the right to possess a firearm pursuant to section 13‑910.
H. For the purposes of this section, "final discharge" means the completion of probation or the receipt of an absolute discharge from the state department of corrections or the United States bureau of prisons.
Sec. 10. Repeal
Section 13‑909, Arizona Revised Statutes, is repealed.
Sec. 11. Renumber
Section 13‑907.01, Arizona Revised Statutes, is renumbered as a new section 13‑909.
Sec. 12. Repeal
Section 13‑910, Arizona Revised Statutes, is repealed.
Sec. 13. Title 13, chapter 9, Arizona Revised Statutes, is amended by adding a new section 13‑910, to read:
13-910. Restoration of right to possess a firearm
A. A person who is convicted of a dangerous offense under section 13-704 or an offense committed in another state that would be a dangerous offense under section 13-704 if committed in this state may not file for the restoration of the right to possess or carry a firearm. A person who is convicted of a serious offense or a violent or aggravated felony as defined in section 13-706 or an offense committed in another state that would be a serious offense or a violent or aggravated felony as defined in section 13-706 if committed in this state may not file for the restoration of the right to possess or carry a firearm for ten years from the date of the person's absolute discharge. A person who is convicted of any other felony offense and who is sentenced to a term of imprisonment may not file for the restoration of the right to possess or carry a firearm for two years from the date of the person's absolute discharge.
B. The restoration of the right to possess a firearm is in the discretion of the judicial officer.
Sec. 14. Repeal
Section 13‑911, Arizona Revised Statutes, is repealed.
Sec. 15. Section 13-2604, Arizona Revised Statutes, is amended to read:
13-2604. Forfeiture and disqualification from office
Notwithstanding the provisions of sections 13‑904 and 13‑912 13‑907, a person who is convicted of violating section 13‑2602 or 13‑2603 shall forever be disqualified from becoming a public servant and shall, if such person is a public servant at the time of his conviction, shall forfeit his office.
Sec. 16. Section 13-3101, Arizona Revised Statutes, is amended to read:
13-3101. Definitions
A. In this chapter, unless the context otherwise requires:
1. "Deadly weapon" means anything that is designed for lethal use. The term includes a firearm.
2. "Deface" means to remove, alter or destroy the manufacturer's serial number.
3. "Explosive" means any dynamite, nitroglycerine, black powder, or other similar explosive material, including plastic explosives. Explosive does not include ammunition or ammunition components such as primers, percussion caps, smokeless powder, black powder and black powder substitutes used for hand loading purposes.
4. "Firearm" means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will expel, is designed to expel or may readily be converted to expel a projectile by the action of an explosive. Firearm does not include a firearm in permanently inoperable condition.
5. "Improvised explosive device" means a device that incorporates explosives or destructive, lethal, noxious, pyrotechnic or incendiary chemicals and that is designed to destroy, disfigure, terrify or harass.
6. "Occupied structure" means any building, object, vehicle, watercraft, aircraft or place with sides and a floor that is separately securable from any other structure attached to it, that is used for lodging, business, transportation, recreation or storage and in which one or more human beings either are or are likely to be present or so near as to be in equivalent danger at the time the discharge of a firearm occurs. Occupied structure includes any dwelling house, whether occupied, unoccupied or vacant.
7. "Prohibited possessor" means any person:
(a) Who has been found to constitute a danger to self or to others or to have a persistent or acute disability or grave disability pursuant to court order pursuant to section 36‑540, and whose right to possess a firearm has not been restored pursuant to section 13‑925.
(b) Who has been convicted within or without this state of a felony or who has been adjudicated delinquent for a felony and whose civil right to possess or carry a gun or firearm has not been restored.
(c) Who is at the time of possession serving a term of imprisonment in any correctional or detention facility.
(d) Who is at the time of possession serving a term of probation pursuant to a conviction for a domestic violence offense as defined in section 13‑3601 or a felony offense, parole, community supervision, work furlough, home arrest or release on any other basis or who is serving a term of probation or parole pursuant to the interstate compact under title 31, chapter 3, article 4.1.
(e) Who is an undocumented alien or a nonimmigrant alien traveling with or without documentation in this state for business or pleasure or who is studying in this state and who maintains a foreign residence abroad. This subdivision does not apply to:
(i) Nonimmigrant aliens who possess a valid hunting license or permit that is lawfully issued by a state in the United States.
(ii) Nonimmigrant aliens who enter the United States to participate in a competitive target shooting event or to display firearms at a sports or hunting trade show that is sponsored by a national, state or local firearms trade organization devoted to the competitive use or other sporting use of firearms.
(iii) Certain diplomats.
(iv) Officials of foreign governments or distinguished foreign visitors who are designated by the United States department of state.
(v) Persons who have received a waiver from the United States attorney general.
(f) Who has been found incompetent pursuant to rule 11, Arizona rules of criminal procedure, and who subsequently has not been found competent.
(g) Who is found guilty except insane.
8. "Prohibited weapon":
(a) Includes the following:
(i) An item that is a bomb, grenade, rocket having a propellant charge of more than four ounces or mine and that is explosive, incendiary or poison gas.
(ii) A device that is designed, made or adapted to muffle the report of a firearm.
(iii) A firearm that is capable of shooting more than one shot automatically, without manual reloading, by a single function of the trigger.
(iv) A rifle with a barrel length of less than sixteen inches, or shotgun with a barrel length of less than eighteen inches, or any firearm that is made from a rifle or shotgun and that, as modified, has an overall length of less than twenty‑six inches.
(v) An instrument, including a nunchaku, that consists of two or more sticks, clubs, bars or rods to be used as handles, connected by a rope, cord, wire or chain, in the design of a weapon used in connection with the practice of a system of self‑defense.
(vi) A breakable container that contains a flammable liquid with a flash point of one hundred fifty degrees Fahrenheit or less and that has a wick or similar device capable of being ignited.
(vii) A chemical or combination of chemicals, compounds or materials, including dry ice, that is possessed or manufactured for the purpose of generating a gas to cause a mechanical failure, rupture or bursting or an explosion or detonation of the chemical or combination of chemicals, compounds or materials.
(viii) An improvised explosive device.
(ix) Any combination of parts or materials that is designed and intended for use in making or converting a device into an item set forth in item (i), (vi) or (viii) of this subdivision.
(b) Does not include:
(i) Any fireworks that are imported, distributed or used in compliance with state laws or local ordinances.
(ii) Any propellant, propellant actuated devices or propellant actuated industrial tools that are manufactured, imported or distributed for their intended purposes.
(iii) A device that is commercially manufactured primarily for the purpose of illumination.
9. "Trafficking" means to sell, transfer, distribute, dispense or otherwise dispose of a weapon or explosive to another person, or to buy, receive, possess or obtain control of a weapon or explosive, with the intent to sell, transfer, distribute, dispense or otherwise dispose of the weapon or explosive to another person.
B. The items set forth in subsection A, paragraph 8, subdivision (a), items (i), (ii), (iii) and (iv) of this section do not include any firearms or devices that are possessed, manufactured or transferred in compliance with federal law.
Sec. 17. Section 16-1011, Arizona Revised Statutes, is amended to read:
16-1011. Counterfeiting election returns; violation; classification
A. A person who knowingly forges or counterfeits returns of an election purporting to have been held at a precinct or place where no election was in fact held, or who knowingly substitutes, forges or counterfeits returns of election instead of the true returns for a precinct or place where an election was actually held, is guilty of a class 3 felony.
B. A person who knowingly substitutes, forges, counterfeits or tampers with ballot tabulations or totals or election results by electronic means or through the use of a computer, machine or other device is guilty of a class 3 felony. This subsection does not apply to the casting or tallying of ballots as provided by law or to the substitution or duplication of ballots as prescribed by sections 16‑573, 16‑574 and 16‑621.
C. Notwithstanding sections 13‑905, 13‑906 13-907 and 13‑912 13‑908, a person who is convicted under this section shall not be automatically restored the right to vote.