New Az law allows clearing marijuana offenses from criminal records

Under a new state law, Arizonans with criminal records for marijuana possession have a chance to have their records expunged, and those who lost their civil rights because of a felony conviction can have their voting and gun rights quickly restored.

“In Arizona, when you are convicted of any felony for the first time, you lose all of your civil rights,” said Joel Feinman, the chief public defender for Pima County. “You lose the right to vote, the right to bear arms, the right to sit on a jury and the right to run for office.”

Voters passed Prop. 207 or the Smart and Safe Arizona Act, last November. This law legalized the possession of recreational marijuana in Arizona, but it also allowed the clearing of past marijuana offenses and the automatic restoration of those civil rights.

Starting July 12, anyone with a record for a marijuana possession offense can petition the court in which they were charged to expunge their record, which means sealing it from the public. If the court grants the petitioner expungement, state law requires that court to restore their civil and gun rights as long as they only have the marijuana charge on their record.

Before the initiative was passed, people with some felony convictions were able to ask judges to restore their rights after completing their sentences, but many either did not know of that option or did not pursue it by filing restoration paperwork with the courts. For first-time felons, that process should have been nearly automatic, but the system has often not worked as it should, Feinman said.

Under the new law, "the only reason those rights wouldn't be automatically restored is if someone has a conviction outside the parameters of (Prop.) 207," said Joe Watson, a spokesman for Pima County Attorney's Office. "Let say I was busted for a weed conviction and burglary. If I'm still completing my sentence for the burglary then my rights still would not be restored."

Any felony conviction takes away civil and gun rights, but expungement has never been a possibility in Arizona until now, Feinman said.

Watson said that the County Attorney's Office expects courts to grant expungements quickly and to everyone who qualifies.

"We don't know exactly how long (the expungement) process will take, but we know the judges in the system, and we expect them to rule expeditiously," Watson said. "We have a system in place to not let petitions grow old."

Instructions for completing a petition requesting expungement are at https://www.azcourts.gov/prop207. This website also has the applications that a petitioner needs to fill out and turn into the court along with a link to the state law (A.R.S § 36-2862) for marijuana record expungements.

"We expect, assuming all the criteria are met, that expungement will be granted," Watson said. "If for some reason a judge rules against granting expungement, a petitioner can always appeal."   

Feinman emphasized that possession for sale or other drug felonies are outside the eligibility for clearing a person's public record. The instructions list the specific offenses that can be expunged, but in general, the convictions covered include misdemeanor or felony offenses for possession of plants, paraphernalia or up to 2.5 ounces of marijuana. 

The county public defender said that most first-time felons should have their civil rights restored automatically after being discharged from imprisonment or probation, though it often doesn't happen. 

“Most people who have felony convictions have never gotten their civil rights back even though they’ve been eligible to get their civil rights back,” he said.

Feinman said that this has to do with judges or probation officers not checking a box when probations expire or during discharge.

"Included in the language of Prop. 207 is that rights are restored automatically when someone is granted expungement," Watson said. "A person should expect to have their rights to have been restored if they were granted expungement."

The Pima County Attorney's Office also plans to launch a webpage on pcao.pima.gov that will have a form available to receive free assistance from that office in seeking to clear their record. Watson said PCAO expects to have that available next week.

While medical marijuana has been available in Arizona since 2010, previous attempts to legalize recreational marijuana have failed at the polls. In 2020, state voters passed Prop. 207  with 60 percent of the vote. It effectively decriminalizes recreational use, allowing people over 21 to purchase marijuana in limited quantities. Pima County Attorney Laura Conover, first elected as the county's top prosecutor in the same election, included support for the initiative in her campaign, with the Democrat indicating that she'd offer support from the office for those seeking expungement.