Proposition 207 has opened the door for the expungement of thousands of low-level marijuana convictions in the State of Arizona. For many, this means a clean record and restoration of civil rights, such as voting and legally owning firearms. If you have a prior marijuana arrest and/conviction in Arizona, starting on July 12th, 2021, you can petition the court for the expungement of those records.

What Does Expungement mean?

In legal parlance, expungement means either the sealing or destruction of a criminal record. In the United States, most expungements pertain to state records. Expungements of federal records remains rare. Juvenile record expungements are the most common. Most juvenile criminal records are expungable, even for serious offenses. However, the expungement of adult criminal records requires the state to specifically allow expungements for certain offenses under narrowly defined circumstances.

The passage of Proposition 207 creates the specific criteria required for the expungement of marijuana arrest and/or conviction records under specific circumstances.

Expungement differs from a pardon. A pardon essentially forgives a person for a crime they admit to having committed. For example, if the President issued a federal pardon to a drug offender in prison, that prisoner would be released and have an officially recognized pardon clearing his or her name. However, unlike expungement, the public record of the arrest and conviction remains. The same principal applies to state pardons issued by a governor. A pardon does not erase a conviction.

An expungement clears the public record and sets aside the conviction. As soon as the records are sealed or destroyed, no member of the public can access them. Any member of the public searching your criminal record would come up with nothing (unless you have another offense that has not been expunged).

This is great news for job seekers who are barred from certain types of employment because of a past marijuana arrest or conviction. Under Arizona law, those with expunged records are entitled to answer that they have no criminal record on job applications and during interviews. They can also answer “no” when registering to vote, obtaining a firearms ownership identification card or applying for a professional license.

It is important to note that under Proposition 207, expunged marijuana records are sealed marijuana records. Because they are sealed, the records still exist; however, Proposition 207 requires all law enforcement agencies to release the records only to the person subject to the expungement or that individual’s attorney. The expunged records may not be used in a subsequent prosecution of any kind.

Arizona Marijuana Expungement Criteria

To be eligible for marijuana expungement, a record for possession must involve less than 2.5 ounces. In the case of concentrates, the amount must be less than 12.5 grams.

Cultivation convictions can also be expunged, provided the petitioner’s arrest/conviction was for less than six cannabis plants, the plants were stored in the primary residence and the plants were grown for personal use.

Arrest/conviction records for possession of marijuana paraphernalia can also be expunged.

The Arizona Marijuana Expungement Process

Expungement is not automatic. You must petition the court. Once a petition is filed, the court will notify the prosecuting agency of the request. That agency has 30 days to respond. If they give no reply, the requested records are then expunged.

To prevent the expungement, a prosecuting agency must respond to the petition and present their reasons for blocking the request. The court will consider if there is a disagreement on a matter of fact about the petitioner’s eligibility. If there is, the court will schedule a hearing to resolve the question of eligibility.

Proposition 207 places the burden of proof on the prosecuting agency to prove ineligibility. If the agency fails to provide this proof, the Arizona marijuana expungement is granted.

If the expungement is denied, the petitioner has the right to appeal.

How a Criminal Defense Attorney Helps Expungement Petitions Succeed

As with most legal processes, an attorney makes expungements go smoother and increases the likelihood of success. They prevent common mistakes and handle any challenges to the expungement, including objections from prosecuting agencies, hearings and appeals.

The petition must establish eligibility for the expungement. A technical mistake could result in the court dismissing the action, forcing you to start again. In addition, some prosecutors may comb through petitions looking for mistakes that give them an opportunity to halt the expungement.

Expungement Hearings

Prosecuting agencies have the right to object to the expungement, which may result in a hearing. During the hearing, the prosecution will try to argue that your case does not qualify. For example, it could argue the quantity possessed was too high even though you have a legitimate argument that the quantity was within the allowable amount. An attorney can present your case to the court and convince the judge that you are entitled to the expungement under Proposition 207.

Appeals

When an expungement is denied, there may be legal grounds to appeal. For example, the judge may have erred in his or her ruling. For example, the burden is on the prosecuting agency to demonstrate you are ineligible by presenting clear and convincing evidence demonstrating this. If the prosecution’s evidence was less than clear and convincing, an appeal may succeed.

What the New Law Allows

Now that proposition 207 is law, many people wonder what is legally permissible.

The law allows possession (over age 21) of up to 1 ounce of recreational marijuana for personal consumption. This is significantly below the 2.5-ounce possession limit for expungement. It also permits possession of up to 5 grams of concentrate. Individuals may also possess up to six marijuana plants in their primary residence, provided they are used for personal consumption.

What the New Law Does Not Allow

Possession of more than the allowed quantities of cannabis, marijuana plants and concentrates can still land you in jail. The idea behind the law is that persons possessing more than these quantities would be doing so because they intend to distribute the marijuana rather than use it themselves. Under the new law, only licensed dispensaries can sell or distribute cannabis.

Arizona remains a zero tolerance DUI state. This means that any impairment from a substance, be it a legal or illegal one, can result in DUI charges. For example, even though the legal limit for alcohol is .08, a driver who is impaired by drinking can still be charged despite having a blood alcohol concentration below .08.

The same principal applies to driving while under the influence of cannabis, though there is no established intoxication limit. This means that if a police officer can demonstrate you were impaired while driving due to cannabis, you can be charged with DUI regardless of the amount of marijuana in your system.

Proposition 207 will improve the lives of many good people through its expungement provisions. It squarely puts the burden of proving ineligibility on the prosecuting agencies. In many cases, these agencies are unlikely to object because eligibility is clear. When the expungement eligibility can be questioned, some agencies may raise objections, forcing a hearing. A criminal defense attorney can spot the holes in prosecutors’ arguments and convince a judge that the expungement should be granted under the new law.