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Expungement of Certain Marijuana Convictions

Posted on June 15, 2021 in Arizona Revised Statutes,Criminal Defense,News

In 2020, Voters passed Proposition 207 – a sweeping marijuana reform that provides better protections for individuals who use marijuana. Prop 207 also legalized adult-use recreational marijuana. Perhaps most importantly, Prop 207 created a method of expungement for certain marijuana convictions.

Difference Between Expungement vs. Set Aside in Arizona

Prop 207 and A.R.S. § 36-2862 create the only expungement mechanism allowed under Arizona law. Before Prop 207, individuals convicted of a crime were only eligible to “set aside” the conviction. Setting aside a conviction simply removes any impairment or disability caused by the conviction. It also will state on an individual’s criminal history that the conviction was set aside.

What it Means to Have a Conviction Set Aside

Notably, convictions that were set aside are still viewable by employers and law enforcement agencies. Moreover, a conviction set aside may still be used or alleged by a prosecutor in future proceedings.

Example: John is convicted of a DUI in 2015 and pays all fines and fees associated. In 2016, he successfully had the conviction set aside. In 2017, John was arrested for another DUI. Despite the conviction being set aside, the prosecutor may still allege the prior DUI conviction, thus opening John up to more penalties and punishment.

What it Means to Have a Conviction Expunged

An expungement, on the other hand, functions entirely and different from a set-aside. A granted expungement seals the individual’s record of the arrest, charge, conviction, and sentence. An expunged conviction cannot be used against you in future proceedings. It is not viewable by anyone except the individual or their attorney.

Most importantly, an individual who has a conviction expunged may state that they have never been arrested, charged, convicted, or sentenced for the crime expunged from their record!

Simply put – an expungement wipes the slate clean and makes it like the arrest, charge, conviction, or sentence never happened.

What Marijuana Offenses Are Eligible for Expungement

An individual who was convicted of the following may be eligible for expungement under Arizona law:

  1. Possessing, consuming, or transporting 2.5 ounces or less of marijuana (of which not more than 12.5 grams were marijuana concentrate); OR
  2. Possessing, transporting, cultivating, or processing six or less marijuana plants at the individual’s primary residence for personal use; OR
  3. Possessing, using, or transporting paraphernalia relating to the cultivation, manufacture, processing, or consumption of marijuana.

Determining whether one is eligible requires a detailed investigation into the facts and circumstances of the conviction. This includes the initial charging documents, the facts of the case, any stipulations if the matter is resolved by a plea, or the jury’s findings after trial.

What Is the Process for Marijuana Conviction Expungement?

Individuals are eligible to begin petitioning for expungement on July 12th, 2021. After a petition is filed, the Court will notify the prosecuting agency and allow 30 days for the prosecuting agency to file a response. The prosecutor may file a response, or they may not.

The prosecutor cannot simply object because they do not like expungement. Arizona law requires that the prosecutor establishes clear and convincing evidence that the individual is not eligible for expungement. This is a relatively high burden on the prosecuting agency to meet.

The Court may schedule the matter for a hearing upon the request of either party. Or if there are disputes regarding whether the individual is eligible for the expungement. The Court is not required to hold a hearing if there are no disputes of fact.

Arizona law requires the Court to grant the petition for expungement if an individual is eligible for expungement. Once granted, the Court will notify all applicable law enforcement entities of the expungement and direct that they seal all records pertaining to the expunged offense.

Eligibility for Expungement

Eligibility for expungement turns on many factors, for example:

  • The year of the offense,
  • The statutes in effect at the time,
  • The allegations in the charging documents, and
  • Any specific facts stipulated by plea or found by a jury after trial.

It is essential to retain a dedicated and experienced criminal defense attorney to get your record expunged.

Schedule A Free Consultation with a Marijuana Conviction Expungement Lawyer Today

Contact AZ Defenders today for a free consultation regarding Proposition 207 and marijuana conviction expungement online here or call (480) 456-6400.