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PETITION TO REDUCE, DISMISS, AND SEAL A MARIJUANA CONVICTION POST PROPOSITION 64

 

 

While California prepares to license its first recreational cannabis shops next month, there are hundreds of thousands who have a marijuana-related criminal conviction for conduct that is now legal or less severe under the new laws. Some of these individuals are still incarcerated and some are on probation, but the majority have served their sentence but have a criminal record reflecting the conviction, which often places barriers to employment, professional licensing, firearm purchases, and even traveling to Canada.

Along with the legalization of recreation marijuana, Proposition 64 also included provisions for the reduction of criminal penalties for former marijuana convictions and for resentencing or dismissal of certain prior convictions for the sale of marijuana. Furthermore, certain convictions for conduct that is now legal under Prop 64 (generally, the personal use or possession of recreational marijuana for personal use) can now be dismissed and the record sealed. These remedies are not automatically granted. An individual seeking relief under these new provisions must petition the court for the relief and the court.

For persons who are currently facing sentencing on a marijuana charge or who are serving a sentence, whether in jail or prison, or on probation, the process requires the filing of a petition with the court which can be denied by the court under certain conditions. Eligibility for this petition is not available for all marijuana-related offenses and the petition requirements can be confusing, especially if the matter requires resentencing or custody credits. But the petition is well-worth filing. If successful, it can mean release from jail, prison, or probation and/or a significant reduction in a person’s sentence. It is advisable that an individual seeking relief under these circumstances consult with a knowledgeable criminal defense attorney.

For the vast majority affected by this provision, the relief sought will be a petition to re-designate a felony marijuana conviction to a misdemeanor, a misdemeanor conviction to an infraction, and/or have the conviction dismissed. There is no deadline for filing this petition but without it, the court will not act on any individual matter.

In certain cases, the court may dismiss and seal the conviction as “legally invalid.” That means that it was an unlawful conviction. This designation will not apply to every marijuana conviction, but only to those convictions for conduct that is now legal under Proposition 64. Unfortunately, the law as it is currently written, is vague as to how the court must seal the record. However, a different section of the Penal Code (Section 13151) does require courts to report subsequent actions on a case disposition to the Department of Justice.

Crimes that were misdemeanors under the old law are now infractions under Proposition 64, including for example personal possession of over 28.5 grams of marijuana and crimes that were felonies are now misdemeanors, such as possession with intent to sell. A successful petition to reduce or dismiss (and seal in some cases) the conviction will offer the former defendant a fresh start free from the restrictions the conviction previously placed upon him or her. Additional and specific information about the petitioning process may also be found on my blog post published immediately following the passage of Proposition 64.

A word of caution: Those who are seeking to get a previous marijuana conviction reduced and dismissed for immigration purposes may find that the successful petition is not recognized by the federal government and the conviction will continue to be a burden for immigration purposes. For those in this situation, it is advisable to consult with an immigration attorney before proceeding on the petition.

If you have been convicted of any marijuana crime prior to the implementation of Proposition 64 (prior to November 9, 2016), it is well-advised that you file a petition to have that conviction remediated under the new law. Orange County criminal defense attorney William Weinberg can help. Contact him for a free evaluation of your options under this new law at (949) 474-8008 or by email at bill@williamweinberg.com.