Proposition 207: Rose Law Group Partner, Cannabis Dept. Director Adam Trenk details critical differences between having records ‘expunged’ and ‘set aside.’

By Adam Trenk, Rose Law Group Partner and Director of Cannabis, Hemp and Equine Law Departments

Arizona is one of the few remaining states that does not allow for the possibility of expungement of criminal records under any circumstances. The Arizona legal system is therefore not authorized to permanently destroy any criminal record, regardless of how minor the offense. Instead, Arizona law only permits the process of “setting aside” a record. 

However, this could change in November if Proposition 207 (“Prop 207”) is passed by Arizona voters.

Specifically, Section 36-2862 of Prop 207 provides that individuals who were previously convicted for the cultivation, possession, and use of small quantities of marijuana may petition to have their record expunged starting July 12, 2021. 

This provision is important because there are significant differences between having your criminal record “set aside” under the current Arizona legal regime and having it “expunged” under the guidelines laid out in Prop 207.  

Let’s first examine the impact and effect of having your conviction “set-aside” under the present Arizona law.  

First, it is important to note that if granted, Ariz. Rev. Stat. § 13-905(D) states that set-aside relief restores all rights and generally releases an individual “from all penalties and disabilities resulting from the conviction.” However, set-aside relief does not seal or expunge the conviction and does not relieve the person from having to report the conviction if asked.  

Furthermore, a conviction that is set aside may still be admissible in court as a conviction or prior, alleged as an element of an offense, as well as used by the Department of Transportation to enforce certain motor vehicle restrictions. See Ariz. Rev. Stat. § 13-905(E).   

Finally, a person whose conviction has been set aside must disclose the conviction if the employment application asks whether the person has a prior conviction. As a result, even if a conviction has been set aside, an applicant must report previous conviction of an offense if asked about prior convictions during a job interview. 

Put simply, having your conviction set aside means that your criminal record is not destroyed, it is merely modified. While it is required that your record shows that the conviction was set aside, it does not stop the employer from seeing your original charge and conviction.  

This is quite different than the effect expungement has on your criminal record. Generally, something expunged, no longer exists. It is gone. Your slate is clean, so to speak.  

Section 36-2862 (C-G) of Prop 207 is abundantly clear on the effect expungement will have. If granted, all records relating to the expunged arrest and conviction will be sealed and they will only be able to be accessed by the individual whose record was expunged. See Section 36-2862 (C) (e).  

 Next, any record that is expunged may not be used in subsequent prosecution. See Section 36-2862 (D). Most importantly, an individual who has their record expunged may state that they have never been arrested, charged, or convicted of the crime that is the subject of the expungement. See Section 36-2862(E).  

But specifically, which types of offenses would be eligible under this proposed expungement process? First, the possession, consumption, or transportation of one (1) ounce or less of marijuana, of which not more than five (5) grams was in the form of marijuana concentrate is eligible for expungement. Second, the  possession, transportation, cultivation, or processing of not more than six (6) marijuana plants at an individual’s primary residence for personal use are eligible. Finally, the possession, use, or transportation of paraphernalia relating to the cultivation, manufacturing, processing, or consumption of marijuana is also eligible. See Section 36-2862 (A)(1-3).

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October 2020