Introduction

Up until now, Arizona retained harsh penalties for marijuana crimes, where possession of even a small amount of marijuana could result in a felony charge. Aside from potential jail time, marijuana felony charges can saddle an individual with serious repercussions including increased difficulty finding housing, problems with finding a job and retaining one’s immigration status, and lack of access to community benefits like welfare, food stamps, and student loans.

Today, Arizona has over 100 incarcerated individuals for marijuana possession. In 2018, Arizona arrested 15,000 people accused of marijuana possession. However, with the passage of Proposition 207, Arizona residents have been given the opportunity clear their felony charges stemming from certain previous marijuana convictions.

What Is Proposition 207?

During the November 3, 2020 election, the Arizona ballot contained a question for voters titled “Proposition 207.” The Proposition asked voters to approve the Smart and Safe Arizona Act, which, if approved, would legalize the possession, use, and cultivation of marijuana for persons at least 21 years old, impose a 16% excise tax on marijuana sales to fund public community programs, authorize the Department of Health and Human Services to develop rules and regulate marijuana businesses, and expunge certain past marijuana convictions. Specifically, Proposition 207 amends Arizona law so that individuals and businesses may:

• Buy and possess up to one ounce of marijuana and cultivate up to six plants for personal use for individuals who are 21 or older,
• Businesses who have received a licenses form the Arizona Department of Health Services may sell marijuana at licensed dispensaries,
• Bans marijuana in public places such as restaurants, parks, and sidewalks. If violated, offenders will be charged with a petty offense,
• Subjects all marijuana sales to an excise tax of 16% to be used toward community programs such as community colleges and law enforcement departments,
• Allows for individuals with certain previous marijuana convictions to have their records expunged.

Proposition 207 passed with a 60-40 margin making Arizona the 15th state, plus the District of Columbia, to legalize marijuana. The Proposition will not become law until all the ballots are officially counted and certified by the Secretary of State, likely to occur in late November. Once the ballots are certified, Arizona Governor Doug Ducey will issue a proclamation that will make Proposition 207 the law of Arizona.

Moving forward, adults 21 years or older in Arizona will not be arrested, charged, or convicted for buying, possessing, or cultivating marijuana in the designated amounts. Business will also freely be able to sell marijuana once licensed.

What Types of Convictions Can Be Expunged?

One of the more progressive parts of Proposition 207 is Section 36-3864, which allows individuals who have been convicted of, arrested for, or charged with certain marijuana related crimes to have their conviction expunged from their record. Crimes eligible to be expunged include:

• Possessing, consuming, or transporting one ounce or less of marijuana, where no more than five grams was in the form of marijuana concentrate,
• Possessing, transporting, cultivating, or processing no more than six marijuana plants at the individual’s primary residence for personal use,
• Possessing, using or transporting paraphernalia relating to the cultivation, manufacture, processing, or consumption of marijuana.

Beginning on July 12, 2021, qualifying individuals may petition the court to have their records expunged.

Expunging Convictions Versus Set Aside

Under the current system, Arizona has removed the severity of having a criminal record through a process called “set aside.” Criminal records that have been set aside relieve an individual of “all penalties and disabilities resulting from the conviction.”

However, when a criminal record is set aside it is not under seal, meaning that the individual at issue in the records is not the only person who can access it. Set aside also does not relieve of person from the duty to report the conviction if asked on government and job applications. Further, criminal records that have been set aside may still be used as evidence against the individual in a future criminal case. Set aside clearly does not go so far as expunging a criminal record as is possible under Proposition 207.

Expunging a criminal record is far broader than having a criminal record “set aside.” To have a criminal conviction expunged essentially means that it has been erased. Section 36-2862(C) of Proposition 207 requires that the records be sealed and separated from the Department of Public Safety’s records. This means that the person at issue in the criminal record is the only one with access to the documents. The Department must also inform all appropriate state and federal enforcement agencies of the expungement. The record may no longer be used as evidence in a future criminal case and the individual whose record has been expunged need not report the conviction on any future government or job applications.

Having a criminal conviction expunged could open the door to more job opportunities, government benefits, and housing possibilities for those previously convicted.

Process for Expunging a Past Marijuana Conviction

Even for qualifying individuals, past marijuana convictions will not immediately and automatically be expunged. In order to have your conviction expunged, you must complete a petition and file it with the court.

Petitions must include all appropriate documents and meet the necessary deadlines. Working with an attorney in filing your petition will help ensure that your petition is filed properly. Individuals can begin filing petitions on July 12, 2021, but it would be wise to start preparing your petition prior to that date to avoid delay.

A petition should include paperwork confirming the charge is one in which expungement may be granted. Once the court receives a petition, the prosecutor’s office will be notified and given 30 days to respond and refute the petition if they have reason to believe the individual is not qualified for expungement. The prosecution would have to show that the petition is not eligible through clear and convincing evidence, a fairly high standard. If necessary, the court may choose to hold a hearing regarding the petition. If an individual’s petition is denied, they do have a right to file an appeal to change the decision.

Note on Pending Marijuana Charges in Arizona

For those who have recreational marijuana charges currently pending against them, such charges are not explicitly subject to Proposition 207. However, at least one county in Arizona, and potentially more to follow, have pledged to drop all pending charges for recreational marijuana use. The Maricopa County Attorney’s Office plans to implement Proposition 207 “immediately,” calling for the office’s attorneys to work on dismissing all charges that would have otherwise been covered by the proposition.

Contact an Attorney for Representation

Proposition 207 has the potential to bring relief to those who have previously been burdened with marijuana convictions. Filing a petition with the court is the first step to retaining such relief and consulting an experienced attorney will confirm that the process is carried out in a timely and effectively manner. You also may have questions regarding whether you qualify for expungement under Proposition 207. An attorney can help evaluate your situation and present you with all potential options.