Advocates assist with clearing marijuana convictions, but results depend on Arizona judges

A new expungement process could give “hundreds of thousands” of Arizonans a clean slate as they ask judges to clear old marijuana offenses from their records. But the new law is still in a “gray area” that will have to be cleared up in the courts, said volunteers at a clinic offering help in drafting those legal requests.

Which requests to have old convictions removed from the record are approved will depend on how judges interpret the new law allowing for erasing low-level marijuana offenses.

The passage of Prop. 207 last November, in addition to OKing recreational marijuana use, will allow some Arizonans to clear past marijuana offenses from their records permanently, or expunge them. If they lost their civil rights because of a marijuana-related felony, they can more easily have them restored. Those rights are "guns, voting, jury and office," as one volunteer said — the right to own a gun, vote, sit on a jury and run for office, all of which are lost with a felony conviction.

 In Tucson, four clinics have been held since July 12, the first day expungement petitions could be filed: three at the Harambe Cafe, a lounge where patrons can smoke weed indoors and buy coffee, and one at the Ward 6 Tucson City Council Office.

All of them have been organized through Arizona NORML, a group that advocates for fewer marijuana restrictions. About 50 people took part in each of the first few clinics that went on throughout Arizona, including in Phoenix and Yavapai County, said Mike Robinette, head of the state chapter.

“Expungement was one of the major selling points of Prop. 207,” Robinette said, adding that Arizona NORML did about 65,000 calls to encourage voting for Prop. 207. “One of our big selling points was the criminal reform aspect of expungements. What’s really interesting and important about this is we didn’t have expungements where we can erase records prior to 207. It defined this expungement process.”

Robinette said he and Arizona NORML are “incredibly excited” about connecting people to the expungement process because they estimate “that it’s in the hundreds of thousands of people who have arrests that can be expunged.”

“We’re just at the beginning of a very long process of getting the word out, getting people to understand that we have this process — that it’s real.” he said.

The clinics are each held by a small group of law students and a lawyer. Last Wednesday, Sen Umeda, an attorney for the Pima County Public Defender’s office, volunteered his time along with two law students and Robinette for an evening clinic at the Harambe Cafe.

Umeda, who has volunteered at all the Tucson clinics so far, said helping navigate the system is relatively easy for him. “Compared to my day job, this is pretty stress free,” the public defender said, chuckling.

He also said he feels good about the program, saying, “bottom line, it's a good thing to do. It helps people. As a public defender, I see a lot of what happens when people get wrapped up in the system. I’ve seen the consequences, so if you can get somebody out and if you can expunge a record, which we just don’t have in Arizona, outside of marijuana now, it’s a big deal.”

Robinette said those who are disproportionately affected by marijuana charges are people of color and low economic status. Some records, he said, date back to the 1970s, but people with those records haven’t had the opportunity to expunge them until now.

Though Umeda said helping people navigate the new system is easy, he said there’s still a bit of “grey area” with the expungement process created by last year's initiative.

“Just looking at Prop. 207 on its face, a ton stands out that doesn’t seem certain,” he said.

“I think we’re still waiting to see how the courts treat it, so there’s a lot of unknowns right now,” he said. “So for now, it’s easy enough to help somebody find the correct information to help them fill out a petition and point them in the right direction.”

Umeda said he’ll find it interesting to see what the courts say when they start notifying people about their cases. According to Prop. 207, courts have 30 days from the date a petition was filed to notify the person if the expungement was granted.

The earliest expungements could have been filed is July 12. Robinette said those early weeks were busy, but finding out how courts are interpreting the law and what they’re deciding won’t be known until later this month.

A small example of the grey area in Prop. 207 came with the case of Christine Pudgett, who goes by MJ. She was arrested in 2014 for selling marijuana that she was growing in her house, which she said happened after an officer with a fake medical marijuana card came and seized her “farm.”

She was later charged with multiple class 3 felonies and had to pay fines and serve probation. She also said she was required to attend drug rehab and apologize for her crime to avoid jail, but she said she almost didn’t apologize despite her lawyer’s advice because she wanted to go down “loud and proud” and didn’t believe she had committed a crime.

Prop. 207's expungement provisions cover the following offenses:

• Possessing, consuming, or transporting two and one-half ounces or less of marijuana, of which not more than twelve and one-half grams was in the form of marijuana concentrate;
• Possessing, transporting, cultivating, or processing not more than six marijuana plants at your primary residence for personal use; or
• Possessing, using, or transporting paraphernalia related to the cultivation, manufacture, processing, or consumption of marijuana.

As Umeda saw it, it was very unlikely that Pudgitt would have her record expunged, but in discussing her case, he said that he didn’t know how the court defined plants, whether they were only defining plants only by their usable amounts, whether the THC content of each plant mattered and whether their weight did.

Although Pudgitt described her marijuana inventory as a “farm,” she said that she was selling plants that were about a foot tall, as they were meant to be taken home and grown. Pudgitt said she was more interested in selling the plant so it could be eaten as a raw herb like mint or cilantro than in selling it as a drug.

Offering her some optimism, Umeda told Pudgitt that she should try to obtain the police and court records in her case, which does cost money. However, he said that once she gets those, an attorney would have to be “creative enough to get the records expunged” or at least “set aside,” which means the conviction can still pop up in background checks but is noted as having been legally nullified.

Umeda said it was likely that Pudgitt’s convictions couldn’t be expunged, but wanted to make sure that she exhausted all of the available resources.

His last bit of advice to her was that “with the way the law is written there is a little gray area” and that the free clinics held by legal aid groups at Pima County Superior Court should at least be able to help her get her rights back.

Turning over a new leaf

Pudgitt said that she wanted her records expunged because she wanted to start a business based on her idea of selling marijuana for consumption as a raw herb instead of as a psychoactive drug. She wasn’t sure if she was going to be able to get a business license or a license to sell marijuana products because of her records.

“Oh well,” she said after Umeda admitted his doubts about her chances of completely clearing her record. “We tried.”

Pudgitt, who was smoking weed while Umeda reviewed her case, was very excited about the business opportunities in THC and CBD, a non-psychoactive ingredient also found in cannabis plants but mostly in hemp. She said she works as a chef and had already found some profit in products like cannabis salads and CBD tinctures, or alcohol-based extracts.

“I’m making ice cream, I’m making T-shirts, I’m making all kinds of shit now,” she said. “I’m starting a business now, and I want to make sure I’m getting people good medicine.”

Although she said her main reason for wanting an expungement was to go into business in marijuana, she also said that “it’s time to go on.” Having completed her probation and paid her fines, the record is all that’s leftover from the arrest besides the memory of it.

Umeda and Robinette said that Pudgitt’s case wasn’t like most of the cases they had been hearing, but Robinette said he hears stories with details like “I got popped for an eighth of an ounce, I lost this job or I can’t get a job.”

“Even for minor marijuana possession, arrest, conviction, adjudication, whatever, there are still deleterious consequences to the people,” he said. “Those consequences follow them throughout their lives.”

At their Ward 6 clinic in late July, Robinette said they had one case from 1972 and one case from 1973. The records weren’t available online, so the clinic had to direct them to DPS to attain physical copies of their records.

What can be frustrating about that, Umeda said, is that “DPS records are not very good and not very detailed,” which would make it harder for attorneys to argue for a person’s expungement in court if they have to.

Robinette said that he could see courts tweaking the amounts and weight limits of Prop. 207 by giving favorable judgements to people who just barely pass the threshold, but he doesn’t see them extending favors to people with records too far over the limit or with a driving while intoxicated charge related to marijuana.

Putting on a clinic

More clinics will pop up in Tucson, including another at Harambe Cafe on August 21 from 11 a.m. to 3 p.m. Robinette said that one is planned to take place on September 4 at G’s Barber Shop on Campbell and Speedway.

At first the clinics throughout the state were taking place at dispensaries that partnered with Arizona NORML, including the Green Med Wellness Center, which is attached to the Harambe Cafe. But advocates think it's important to try to reach people who have been disproportionately affected by marijuana offenses, and hold clinics in places where they can take part, Robinette said.

Robinette said Arizona NORML is also considering hybrid clinics where there are both in-person attorneys and attorneys available over Zoom to help more people simultaneously.

Visitors to the clinic should bring “any and all documentation” related to their arrest or conviction, Robinette said. However, for people who have no relevant documentation, attorneys can access those records online.

“Even if someone has no records, we can certainly still help them,” he said. “We don’t want to ever turn anybody away or turn away anyone from the opportunity to be assisted by this process.”

There are three ways to file: online, but a fee is associated and Robinette’s understanding is that it’s not very user-friendly; by mail, but this requires sending two copies of a petition and a self-addressed stamped envelope so that one copy can be stamped and sent back; or in-person at the court where the conviction was entered.

Arizona NORML clinics only assist with the expungement process and generate a petition. They won’t represent clinic visitors in court, and they don’t provide legal advice because of the liability involved.

Umeda did, however, refer Pudgitt to multiple offices that he was certain could help her and gave her the direct number to his office line, telling her that if she runs into trouble at any of the offices to call him.

“What’s really impressed me is the quantity of attorneys who want to do this work and who are willing to give up their free time to do it,” Robinette said.

Even though Umeda can’t help everyone get an expungement, as with Pudgitt, he said it’s still worth it to volunteer, saying “I like hearing people’s stories, and I like helping people out in the criminal justice system.”