What are the sex offender registration requirements for individuals convicted and required to register under prior Arizona statutes who, if convicted today, would not meet the sex offender registration criteria?
Your opinion request specifically mentioned legislative changes in that eliminated the registration requirement for offenders with a single conviction for indecent exposure or public sexual indecency.
What are the obligations of the Department of Public Safety "DPS" regarding court orders that waive the statutorily required sex offender registration or notification requirements? Summary Answers Convicted sex offenders who were required to register under the law in effect at the time of conviction are not required to register if they do not meet the current statutory criteria in A.
Therefore, for example, a person with a single conviction for indecent exposure or public sexual indecency before is no longer statutorily required to register as a sex offender. DPS must comply with any court order, including an order that appears to be contrary to law, such as an order waiving statutorily required sex offender registration or notification requirements, until that order is modified or vacated.
In performing its recordkeeping responsibilities, DPS must recognize a court order entered pursuant to A. However, an order under A. Background and Analysis 1. Sex Offender Registration The Legislature enacted sex offender registration requirements in The sheriff must provide the registration information and any change of address to DPS.
Failure to comply with the registration requirements is a Class 4 felony. In addition, in , the Legislature established a sex offender community notification program that applies to offenders who are required to register, and DPS oversees this program.
In , the Legislature eliminated the requirement that all persons convicted under Chapter 14 or Chapter Although no longer requiring registration for all convictions under chapters 14 or The legislation did not evidence any legislative intent to require continued registration by persons who would not be required to register under the amended law. Generally, the law at the time the offense is committed governs criminal sentencing, and a change in the law does not affect the sentence of a person convicted and sentenced under the earlier law.
These principles, however, do not apply to sex offender registration because registration is not part of a person's punishment. Registration is regulatory, rather than punitive. For offenses subject to mandatory registration, the duty to register as a sex offender arises from statute.
Thus, the people currently obligated to register are those convicted of an offense currently listed in statute and any others a judge, in his or her discretion, has ordered to register. Accordingly, those offenders who were previously required to register, but are not required to register under current law, are no longer statutorily required to register. Although, as established in State v. Garcia, the registration obligation arises from statute, if the court included it as a term of probation, that court order creates an obligation that must be honored.
Thus, if a court included registration as a term of probation for a person convicted of an offense before that is no longer subject to the registration requirement, that person was not immediately relieved of the obligation to register when the legislation became effective.
Instead, that person was required to comply with the registration requirement as long as it remained a term of his or her probation. This question arises because A. DPS's relevant statutory responsibilities include maintaining a database with information about sex offenders required to register and notifying the appropriate county if, according to the information available, a person has failed to register as required by A. DPS also maintains an internet website http: Maricopa County, Ariz. Court Orders Under A.
For the reasons discussed previously, when performing its record keeping responsibilities, DPS must respect any court order entered under A. Unless such an order is modified or vacated through appropriate judicial proceedings, DPS records should reflect entry of any such order under A.
With limited exceptions, offenders required to register are ineligible for orders to set aside convictions under A. Although most offenses requiring registration are in Chapter 14, some are not, such as taking a child for the purpose of prostitution A. If the victim is under fifteen years of age, those offenders are ineligible under A.
Thus, a proper order under A. An order under A. In the past, this Office has emphasized that setting aside a judgment under A. As the Supreme Court explained in Noble, registration is not to punish the offender but to facilitate the work of law enforcement. Therefore, it is not a penalty or disability within A.
Royal Maccabees Life Ins. A conviction that has been set aside may still be used as a prior conviction in any subsequent prosecution and may be used by the Department of Transportation for license suspensions and revocations.
In addition, a person still has an obligation to disclose the conviction, despite an order under A. The conviction may also be used for licensing decisions, Ariz. I, and it is not removed from DPS records, Ariz. The current sex offender registration statute establishes, with limited exceptions, a life-long procedure for those convicted of a specified offense. Conclusion Because the Legislature eliminated registration requirements for particular offenses, persons previously convicted of those offenses are no longer statutorily required to register.
They must, however, continue to register if a court has required registration as a term of probation. An order purporting to waive a statutory obligation to register as a sex offender, although contrary to A.
In addition, if an order is improperly entered under A. Janet Napolitano Attorney General The Legislature repealed a previous sex offender registration law in In , the Legislature added to the crimes that require registration i unlawful imprisonment and ii kidnapping when the victim is under 18 and the crime is not committed by the child's parent. When sentencing a defendant who is statutorily required to register, a judge might also order the defendant to register.
See Noble at , P. There may be a question whether such an order merely gives notice of the statutory obligation to register or whether it creates an obligation to register that exists independent of the statute.
This Opinion does not address this question but instead focuses on the statutory duty. Superior Court, Ariz. Citing the constitutional protections ensuring freedom of the press and open courts, the Supreme Court refused to hold the newspapers in contempt for violating the invalid court order.
The Court has not extended this opinion to other situations. McLaughlin, at , 6ll P. Section is Arizona's "expungement" statute.
The rules also provide time for the prosecutor to file an objection. A timely objection should be filed where an ineligible offender seeks to set aside a conviction under A. If such an order has been issued, the appropriate prosecutorial agency should assess what opportunities exist to have the order vacated. The same is not true of a conviction that is reversed on appeal.
New Banner Institute, Inc. If that person, however, has any other convictions for an offense requiring registration, the person "is required to register for life. In addition, a judge may order a juvenile who is adjudicated delinquent for an offense specified in A.