In their general election on November 3, 2020, Arizona voters passed Proposition 207. The Marijuana Legalization Initiative effectively decriminalized the use and possession of modest amounts of marijuana for personal use for adults age 21 or older. The resulting Smart and Safe Arizona Act governs the adult use, taxation, and regulation of marijuana in Arizona. This was good news for individuals who had been formerly convicted of various marijuana offenses, including many people who can now have their convictions expunged.

Arizona state statute A.R.S. § 36-2862 addresses and explains the details surrounding the marijuana conviction expungement, rules, appeals, and dismissal of complaints. Essentially, any person with a prior marijuana conviction can petition the Arizona courts for an expungement. To be clear, the American Bar Association defines expungement as “the process by which a record of criminal conviction is destroyed or sealed from state or federal record." In other words, to expunge a previous marijuana conviction is to have it erased or entirely removed from your record as if it never occurred.

What Are the Advantages of Having My Marijuana Conviction Expunged?

Some may assume that because they have already completed a jail or probation sentence for which they were convicted, there is no point in having the conviction expunged. This could not be further from the truth. There are many benefits of expungement.

If you were convicted of a marijuana-related misdemeanor in Arizona, expungement can help you:

• Pass an employer criminal background check
• Better your situation with child custody
• Qualify for student loans or better housing

In addition to the above, if you were convicted of a marijuana-related felony in Arizona, expungement can help you restore your civil rights – including your right to:

• Vote
• Possess and carry a firearm
• Serve as a juror
• Hold public office
• Acquire particular business and professional licenses
• Obtain government-funded housing or loans

In addition, having a marijuana conviction expunged may also help if you have other convictions on your record, or if you ever face future legal troubles. Expungement of a criminal record can reduce the sentencing category for other offenses, lowering them to a lower set of guidelines. Even sentences for prior offenses that are not marijuana-related can reduced when marijuana charges are cleared from your record. In some cases, expungement may create a situation in which mandatory probation rather than jail time, occurs.

When Can People Who Wish To Apply For Expungement Begin To Petition The Court?

Prop 207 allows those previously convicted of marijuana charges to petition the court for expungement beginning July 12, 2021. 

Is An Expungement The Same As A Pardon?

A legal pardon forgives a person for committing a crime and is typically given by someone such as the President or a state governor. An expungement does not forgive a crime but instead removes it from a person's criminal record. Only a judge or court can issue an expungement.

What Types Of Previous Marijuana Offenses Can Be Expunged?

A.R.S. § 36-2862 is an added revision to the state statutes pertaining to marijuana laws. The new subsection relates specifically to the expungement of certain marijuana convictions in Arizona. The most updated version identifies the following types of Proposition 207 marijuana offenses that are eligible for expungement of any record of their arrest, charge, conviction, adjudication, and sentence:

1. Possession, Consumption, or Transportation of Marijuana

Anyone charged or convicted of possessing, consuming, or transporting 2.5 ounces of marijuana, or 12.5 grams of marijuana concentrate, or less.

2. Possession, Transportation, or Cultivation of Marijuana Plants

Anyone charged or convicted of possessing, transporting, cultivating, or processing no more than six marijuana plants at their primary residence for personal use.

3. Possession, Use, or Transportation of Marijuana Paraphernalia

Anyone charged or convicted of possessing, using, or transporting paraphernalia relating to the cultivation, manufacture, processing, or consumption of marijuana.

What Is The Process For Having My Arizona Marijuana Charge Or Conviction Expunged?

Not long after Arizona's voters passed Proposition 207, some counties announced that any eligible pending cases for marijuana possession would be immediately dismissed. No doubt that was a relief for people who had pending cases in those counties. But for those whose cases were not considered as pending, or for those who had pending cases in counties who were less proactive, they would have to follow a specific expungement process.

The first step in having your charge or conviction expunged is to file a petition for expungement with the court. You can do this on your own. However, it might be wise to enlist the help of an experienced drug crime lawyer, so nothing jeopardizes your chances for expungement.

Once you have filed your petition to the court, the prosecuting agency has thirty days to respond. You could be called to a hearing if they question the validity of your petition. The court also has the ability to dispute the granting of your request. If that is the case, a prosecuting agency will have to provide clear and convincing evidence at the hearing that you are ineligible for expungement. 

If the court grants your petition, records of your arrest, charge, conviction, adjudication, and sentence will be expunged, and a written order stating so will be issued. The Department of Public Safety (DPS) will seal and separate the expunged record and let all appropriate state and federal law enforcement agencies that your offense has been expunged. A fee is charged by the DPS to research and correct your criminal history record. This fee can be waived if the petitioner is unable to pay.

The arresting law enforcement agency and the prosecuting agencies are also notified and must update all changes to your records. Neither are allowed to make any record of your expunged offense except to inform you and your attorney of the expungement. The expunged information cannot be used in future charges against you by any prosecuting agency or court for any purpose.

Do I Ever Have To Reveal To Anyone That My Record Is Expunged?

No. After your record has been expunged, you have a clear record (from the expunged offense), and it is as if you have never been arrested for, charged with, adjudicated or convicted of, or sentenced for that crime. Your records are sealed, and you will regain any lost civil rights.

What if my petition to the court is denied?

If your petition to the court is denied for any reason, it is up to you and your lawyer to file an appeal pursuant to section 13-4033, subsection A, paragraph 3 if you so choose.

Are Convictions That Are “Set Aside” And Proposition 207 Expungements The Same Thing?

No. Before the passing of Proposition 207, Arizona did not typically expunge criminal records. Instead, records could be “set aside,” meaning that the conviction could be removed from your record. However, setting aside a conviction did not prevent that conviction from showing up on background checks or preventing law enforcement or the courts from using that conviction as a "prior conviction" in future cases brought against you.

On the other hand, having your conviction expunged means that it can never be used as a "prior" against you. Expunged records are only available to you and your lawyer. This is particularly helpful for those who may have faced property management companies or employers who have denied them rental property or a job based on their conviction.