Proposition 207 and Getting Your Record Expunged

With Proposition 207 passing in Arizona with 60% of the vote, a lot of people are wondering exactly how the laws in the state are going to change moving forward when it comes to marijuana, drug charges, drugged driving charges, and more. As outlined in the Proposition, the Arizona Department of Health Services will be responsible for implementing regulations and issuing licenses for recreational marijuana.

But how will this be handled by legislation and law enforcement? Who will be most affected by these legislative changes? And, if someone has already been charged with marijuana possession, when and how can this charge be expunged?

What Exactly is Proposition 207?

To start, let’s properly define Prop 207 as it currently exists. Proposition 207 outlines the legalization of recreational marijuana (in limited quantities) in the state of Arizona for people age 21 and over. The Proposition states that a 16% sales tax will be placed on all marijuana sales in the state, which will be in addition to the transaction and use taxes that have already been in place for medical marijuana in the state prior to the passing of this legislation.

The Proposition identifies the organizations who will be key receivers of the tax money collected from marijuana sales; a group which includes municipal groups like the police, fire departments, the Highway User Revenue Fund, and community college districts among others.

As to those who have been convicted of marijuana-related crimes, the Proposition states that anyone who has been charged, convicted, or sentenced for possessing a maximum of 2.5 ounces of marijuana, a maximum of 12.5 grams of concentrate, or having six or fewer marijuana plants can petition the court system to have their record expunged. Should the opposing party be unable to provide a clear and definitive reason as to why the defendant’s crime(s) should not be expunged, the court must grant the petition on behalf of the defendant. This could affect hundreds of thousands of Arizona citizens who have been charged with marijuana-based crimes.

Current Marijuana Laws in Arizona

Now that we know more about Proposition 207, let’s take a closer look at the current state of marijuana laws in the State of Arizona.

In 2010, Arizona citizens voted to legalize medical marijuana. In fact, Arizona is one of 33 states to currently have a medical marijuana program in place. However, even with this program in place, Arizona is one of the strictest states in the U.S. when it comes to drugged driving laws.

Like in other parts of America, drugged driving is a growing issue in the state of Arizona. While still not as prevalent as drunk driving, the percentage of drugged driving accidents has significantly increased in recent years. So much so that the amount of fatal crashes in 2015 actually surpassed those in which alcohol was involved.

A large number of police officers in Arizona are provided special training and considered “Drug-Recognition Experts.” This means that the officers are trained to better identify the signs of drug use and intoxication. That being said, a tool does not currently exist that can help officers in assessing an individual’s state of sobriety. For alcohol, a breathalyzer test could be used, but nothing of the kind currently exists for marijuana intoxication.

Despite this, the state has a zero-tolerance policy for driving while under the influence of drugs. A positive test, no matter how high the amount of THC or other drug-related substance in your body, is a punishable offense.

Record “Set Aside” in Arizona

Are these harsh laws and regulations going to stick around? Well, it’s hard to say at the moment.

Currently, in the state of Arizona, convictions stay on your record until the age of 99. So what does this mean for you now? What are your options if you’ve been convicted of a crime, served your time in jail, completed any compulsory anger management and/or addiction courses, and finished your probation? You might be ready to go back to work, but you still have a conviction on your record – what do you do?

Despite the word “expungement” getting thrown around a lot, Arizona does not actually have expungement laws in place (expunge, meaning to erase or conceal the record completely). Instead, individuals have the opportunity to request their conviction be “set aside.”

What is the difference between “expungement” and “set aside”?

Expungement is the removal or concealment of a criminal offense from an individual’s official criminal record; something that can be done on both the state and federal levels. On the other hand, a set aside does not delete or conceal the record. Instead, it shows that the individual in question has completed all mandatory sentences, paid all fines, completed probation, and that no pending charges exist.

It’s important to remember that receiving a set aside still means that anyone who does an extensive background check on you can and will see your previous conviction(s); however, they will also be able to see that you have successfully completed your sentence.

There are numerous benefits to having your judgment set aside when it comes to the earning some key civil liberties. On average, having your judgement set aside can make it easier to find a job, as well as renew your second amendment right to bear a firearm. Other restored civil liberties include your right to vote as well as your right to serve on a jury.

If you’ve been convicted of a serious, a petition can be made to restore your Second Amendment right ten years after the completion of your last sentence. That being said, it is important to note that if the crime committed was the assault of another person which resulted in (or with the intended result of causing) physical injury, firearm privileges cannot be restored.

How and When Can You Get Your Record Expunged?

In order to achieve a set aside, you must first petition the court to clear your record of all charges. It is up to the judge (based on the specific context and evidence in your case) to determine if the petition is successful, meaning that courts and police cannot give your arrest record to anyone.

As it stands currently, we’re likely to see a lot of new Arizona regulations and legislation surrounding recreation marijuana in the upcoming months. In fact, the Arizona Department of Health Services will need to do establish new regulations for recreational marijuana by April of 2021, so there will likely be a fairly large push upcoming to get this information organized before the end of the year and moving into spring.

As of April 2021, Medical marijuana dispensaries will be able to begin selling recreational marijuana as long as they have a valid certificate granted by the Arizona DHS. Later in the year, beginning in July 2021, individuals who have committed crimes of marijuana possession equal to or less than the legal amount of possession as outlined by Proposition 207, will be able to petition for the expungement of their legal record.

Despite all of this, – at least, as it currently stands – Arizona would remain a zero-tolerance state, meaning that anyone operating a motorized vehicle while intoxicated can be legitimately charged.

It’s important – especially in the near future as fake news media stories are going crazy - that you stay informed about what is legal and when (as it relates to marijuana). Despite its approval, the new proposition does not go into effect until the end of the month – and that doesn’t even include licenses to sell, etc. Know that you can still be charged with illegal possession of marijuana in the meantime. Keep up with the latest news and, when in doubt, seek legal advice from one or more lawyers who are experienced professionals in the field.