Expungement of Convictions Set to Begin in Arizona, Albeit Under Limited Circumstances
May 19, 2021
By Vinnie Lichvar and Robert H. Feinberg
Most Arizonans are familiar with Proposition 207 (the “Smart and Safe Arizona Act”), passed in 2021, because it legalized adult use of marijuana. However, another important, but less publicized provision of Prop 207 was a new addition to the Arizona Revised Statutes, A.R.S. § 36-2862 – which expunges prior convictions involving marijuana.
Beginning July 12, 2021, any individual convicted of an offense related to the following conduct may petition to the court to have a conviction expunged:
1. Possessing, consuming or transporting 2.5 ounces or less of marijuana, of which not more than 12.5 grams was in the form of marijuana concentrate;
2. Possessing, transporting, cultivating or processing not more than six marijuana plants at the individual's primary residence for personal use; and
3. Possessing, using or transporting paraphernalia relating to the cultivation, manufacture, processing or consumption of marijuana.
Prior to the passage of Prop 207, expungement was not available for any offense in Arizona. The only option for individuals with prior criminal convictions was to petition the court to have the conviction “set aside” under A.R.S. § 13-905. But, even if an individual is successful with this petition, the conviction still remained part of the public record and appears on background checks.
Expungement affords many more benefits. For example, while a court can tailor an expungement order as it deems appropriate, if a court grants a petition for expungement that generally means (1) the conviction may be vacated; (2) the State may expunge any record of the arrest, charge, conviction, adjudication, and sentence; (3) civil rights may restored, including the right to possess firearms; (4) all prosecuting and law enforcement agencies may be notified of the expungement and be required to seal all related records; and (5) the clerk of the court may be required to seal all records related to the expunged conviction, which prohibits access to those records by anyone other than the accused or convicted individual. Accordingly, expungement may be able to assist individuals in qualifying for better housing and student loans, pass a background check initiated by a prospective employer, and even improve child custody arrangements.
For these reasons, and given that this is a new practice in Arizona, individuals with a conviction for the above-described conduct should discuss their options for petitioning a court for expungement of their conviction with an experienced attorney.