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Smart & Safe Arizona Act: Expungement of minor marijuana violations and how to petition the court, by RLG Partner, Cannabis Department Director Adam Trenk & law clerk Madelaine Bauer

Posted by   /  July 6, 2020  /  No Comments

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By Adam Trenk and Madelaine Bauer | Rose Law Group

In Arizona this November an initiative called the Smart & Safe Arizona Act (the “Act”) will be on the ballot. If it passes it will mean the legalization of recreational marijuana in our state after years of criminalization. The legalization of marijuana will not only turn over a new leaf for adult marijuana use moving forward, but may also provide relief for those who have been prosecuted in the past for minor marijuana related violations which would be legal under the Act.

If the Act passes, adults twenty-one and older will be legally permitted to consume and cultivate marijuana at their residence. Over the past several decades when marijuana has been illegal to consume or grow, many have been prosecuted for violating these laws, and leaving them with criminal records that haunt them.

It seems unjust to make those convicted of marijuana related crimes continue to suffer the consequences of their past, when their infractions would no longer be illegal under this new law.  Fortunately, the Act will offer absolution to those in this situation if it becomes law.

The Act contains a provision under Section 36-2862 specifically stating that an individual who was arrested for, charged with, adjudicated or convicted by trial or plea of, or sentenced for, certain offenses arising out of conduct occurring before the Act passed may petition the court to have the record of that arrest, charge, adjudication, conviction, or sentence expunged beginning July 12, 2021. Additionally, individuals with pending charges shall have their cases dismissed with prejudice and may petition the court to expunge their record before July 12, 2021.  Expungable charges include but are not limited to possession of two and one-half ounces or less of marijuana, possessing no more than six marijuana plants, and possessing or using paraphernalia relating to the consumption of marijuana.

As a result, those who have been labeled and burdened with criminal records as a consequence of involvement with marijuana will have the sui generis opportunity to petition the court for expungement of their record.

If and when the Act becomes law, it will be imperative that these petitioners follow the proper protocols when submitting their requests in order to avoid delays and potential denial. To obtain an expungement the petitions must detail the specific charges, confirm the charge is an expungable offense, and may list only one charge for expungement. Importantly, such petitions may only be processed in the same courts where the charges were brought.

After an expungement request has been filed, the court has the full authority to grant, deny, or hold a hearing for the petition due to a genuine dispute of fact with regards to whether the petition should be granted. If the petition is granted, the appropriate departments, including the Department of Public Safety, will be notified of the expungement and the petitioner will officially be expunged of any record stating such conviction. If the court denies a petition for expungement, the petitioner has the right to file a direct appeal. 

In anticipation of the legalization of marijuana in November, interested parties with minor criminal marijuana violations may wish to consult with an experienced lawyer to prepare to file their expungement petitions. Such consultation may be the first step for those with minor violations to end up with the clear record they well deserve.

Adam M. Trenk, Esq. is a Partner at Rose Law Group pc. He is the Chair of the Equine, Cannabis, and Hemp Law Departments. He advises clients on matters of Strategic Development, Contracts, Conflict Resolution, and Government Relations. He is an avid Horseman and active in the Equine Community. Adam Trenk sits on the Advisory Board for the Scottsdale Community College Equine Science Program.  He served his community in Cave Creek as an Elected member of the Town Council from 2009 to 2011, and again as Vice Mayor 2013-2015. Adam Trenk can be contacted by email at ATrenk@RoseLawGroup.com or by phone at 602-402-3335. Like him on Facebook at www.facebook.com/EquineAttorneys. Follow him on Instagram @thelawhorse.   

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