By Katya Schwenk | Phoenix New Times
Since July 12, hundreds of thousands of people convicted of low-level marijuana charges in Arizona are eligible to have their records scrubbed clean, thanks to a provision of Proposition 207, the marijuana legalization ballot measure that voters passed last November.
But as courts begin to process these new expungement petitions, one new ruling in Pima County is making cannabis advocates nervous. If adopted elsewhere in the state, they say, it could threaten hopes for a wave of expungements.
The ruling hinges on record-keeping for old marijuana possession charges, which has proved to be an obstacle for petitioners. In Arizona, before the passage of Prop 207, possession of anything less than two pounds of marijuana constituted a “class six” felony. This made the specifc weight unimportant to document: Three grams, 25 ounces — it was all treated the same under Arizona law, and, in many cases, the amount is missing from police records.
Under Prop 207, though, that information is critical. Only possession charges for 2.5 ounces of marijuana or less are eligible for expungement under the new statute. Here, the problem arises: Many people eligible to have their records wiped cannot prove that they are, in fact, eligible — no clear evidence of how much marijuana they had on their person when they were arrested.
Jonathan Udell, a local cannabis attorney, calls it a “problematic ruling.” “The case is supposed to be expunged unless the prosecutor shows, by clear and convincing evidence, that it is not eligible,” says Udell. “And in this case, not only does the prosecutor not show by clear and convincing evidence that it is not eligible — they agreed.”
