Learn whether you may be able clear a prior marijuana conviction from your record in Arizona through the expungement process and what is required to get it done.

Ten years ago, it was a crime to be caught by law enforcement for using, possessing, transporting or growing marijuana in any amount. You could be convicted of a crime and possibly be required to serve time in jail, pay a fine, and undergo drug treatment for a small amount of cannabis. According to pew Research, 62% of the 50 U.S. states and the District of Columbia, including Arizona, have legalized or decriminalized offenses involving small amounts of marijuana. People convicted of marijuana crimes in Arizona before legalization are seeking information on ways to clear their records through expungement.

To date, 15 states, D.C., and one territory have legalized the adult-use of marijuana, and 16 states and one territory have decriminalized the use of marijuana.  Eleven states and the District of Columbia did both.

What is the difference between Legalization and Decriminalization?

• Legalization means that it is no longer against the law to possess a type of a drug or up to some limit of a type of drug.
• Decriminalization is different from legalization in that it is still against the law to possess the drug. Violations for small amounts of marijuana intended for personal use tend to be civil or local infractions rather than state crimes that come with the possibility of incarceration.

Can you still be arrested for possessing marijuana?

Just because a state has made marijuana use legal or decriminalized the use of marijuana, residents are not immune from being arrested for possessing marijuana. People in states that legalized marijuana can still face arrest for possessing more than the authorized limit of marijuana.

Under Arizona Stat. § 36-2852, possession, consumption, or transportation of up to 1 ounce (28 grams) of marijuana or less, or 2.5 grams of marijuana concentrate or less is legal. Amounts above those limits are illegal. It is also legal to cultivate of no more than six cannabis plants at their primary residence.

Additionally, marijuana remains illegal at the federal level. U.S. enforcement agencies like the FBI and the Drug Enforcement Administration can still make arrests for marijuana offenses.

Can a prior marijuana conviction be cleared (expunged) from a person’s record?

Laws facilitating marijuana expungement and other record relief forms like sealing and set-aside, have now been enacted in more than a dozen states.  Most of these laws cover minor offenses that involved small amounts of marijuana. Individuals are required to file petitions in court to obtain relief.  A small number of states have authorized streamlined record reforms that will eliminate petition requirements and cover more offenses. 

Twenty-three states and the District of Columbia enacted expungement, sealing, or set-aside laws specifically for marijuana.  Six states have developed pardon programs for marijuana offenses. 

The Difference between a pardon and an expungement

An expungement treats a conviction as if it never occurred. It, in effect, “erases” the record. Your record is destroyed or sealed and cannot be viewed.

A Pardon relieves a person of the legal consequences of a conviction, but it does not “erase” or hide the record. Your record is still available for public view, but a notation of your pardon from the state is added.

Most states can provide an expungement or a pardon. However, the federal government does not have a mechanism for clearing a federal conviction. Certain violent crimes, sex crimes, and crimes involving children are not eligible for expungement.

Expungement of a Marijuana Conviction in Arizona

In the 2020 November election, Arizona voters approved a proposition to legalize marijuana Ariz. Rev. Stat. § 36-2862, which included a provision for expungement of certain types of marijuana convictions for persons convicted before legalization occurred.

Effective July 2, 2021, Arizona courts, upon petition, must expunge all arrests, charges, and convictions for these marijuana crimes:

1. possessing, consuming, or transporting 2.5 ounces or less and containing not over 12.5 grams of marijuana concentrate;
2. possession, transportation, cultivation, or processing not more than six plants at an individual’s primary residence for personal use;
3. possessing, using, or transporting paraphernalia relating to the cultivation, manufacture, processing or consumption of marijuana. 

The prosecutor has up to 30 days to respond to the petition and may request a hearing. The court is required to grant the petition unless the prosecutor establishes clear and convincing evidence that the petitioner is not eligible.  ARS§ 36-2862(a)(3).

Benefits to Having a Conviction Record Expunged

Since an expungement seals your record, only you and your attorney will have knowledge of and access to the records of your arrest and conviction. An expungement “erases” your record, so there is nothing for the public to view or find. If someone checks with a legal or government agency, they will tell them that they have no record of a conviction for you.

• On any application for a job, housing, or a loan for education or any financial purpose, you can legally deny an arrest or conviction.
• Potential employers, landlords, or lending institutions that run a background check will not be able to see any trace of your conviction.
• You have our civil rights restored, including the right to possess a firearm, vote, hold public office, and serve as a juror.
• You can be eligible for federal assistance such as jobs programs and government-funded housing.
• You can apply for and obtain a business license, professional license, and driver’s license.
• An expungement can help you improve your child custody situation or help you adopt a child because the court cannot access your marijuana conviction record.
• Lenders and insurance companies would often use a criminal conviction as a reason to deny a loan or insurance coverage or charge high-interest rates and premiums. Getting your marijuana conviction expunged will allow you to deny that you have a criminal conviction.
• When you expunge your record, you can start over with a clean record, free of the stigma of being a convicted criminal. Your past will be behind you and you can enjoy all the rights and privileges of any U.S. citizen.

Call an Experienced Arizona Criminal Defense Lawyer

While you do have the option to file for expungement of your record on your own, you take a significant risk. Are you well versed in Arizona’s marijuana laws? Do you understand the expungement process well enough to defend yourself if something goes wrong?

There is always a possibility that the court could deny your request if the form to file to expunge your record is filled out incorrectly or missing information. A risk exists that the prosecutor might find some clear evidence that prompts him or her to request a hearing.

You would be wise to consult an Arizona criminal defense attorney with some experience in marijuana laws. An experienced attorney can ensure that they will correctly complete the filing forms to expunge your marijuana conviction. They will protect your rights, answer any questions regarding the expungement of your conviction and represent you in any expungement hearings. Having an Arizona criminal defense attorney in our corner can give you peace of mind.