How to Clear a Marijuana Possession Offense from Your Record

by | Mar 19, 2018 | CRIMINAL LAW, EXPUNGEMENT | 0 comments

Marijuana laws have recently been changing all over the country, including the passage of California. Prop. 64 which made the sale of marijuana legal in the State without a medical prescription.  In early 2018, both the Mayors of San Francisco and San Diego announced their plan to expunge or reduce marijuana related offenses to help their citizens avoid the lengthy and costly legal process.

Los Angeles District Attorney Jackie Lacey has taken a different position from those of the Mayors of San Francisco and San Diego and will not expunge or reduce any marijuana related offenses in Los Angeles County.

Although the District Attorney office is not expunging or reducing offense, you can still petition the court to do so.  Expunging or reducing a marijuana offense on your record can greatly enhance your employment prospects and financial applications such as purchasing a home.

I. History on Marijuana Offense Possession Reduction

On January 1, 2011, Senate Bill No. 1449 reduced possession of one ounce (28.5 grams) or less of marijuana, excluding concentrated cannabis, to an infraction punishable by a maximum $100 fine (plus court associated fees.) California Health & Safety Code 11357 (b).

The same applies to possession of one ounce or less in a motor vehicle under California Vehicle Code Section 23222 (b).

No arrest or imprisonment is allowed for possession of less than one ounce of marijuana. However, police often get around this provision by charging minor offenders with felony intent to sell.

II. How to Clear your Records of Marijuana Possession

If you have been arrested and/or convicted of an ounce or less of marijuana there is a simple process to seek a clear criminal record.

According to California Health and Safety Code 11361.5.  (a) Records of a marijuana offense shall not be kept beyond two years from the date of the conviction, or from the date of the arrest if there was no conviction.

If it has been two years since your marijuana possession conviction, then your record should be cleared as if the arrest and resulting prosecution never occurred. Your record would be expunged of the activity and you will be able to report a clean record when applying for jobs, as stated in our past blog post here, or when seeking loans or applying for processional licensing.

III. How to Make Sure your Record Was Cleared

Government agencies are often underfunded and overloaded with work for their citizens, i.e. think of a trip to the DMV. Sometimes clerical errors do occur and your record may not get fully cleared as it is should by law.

Before ever selecting “no” on your job application when it asks if you have ever been convicted of a crime, you can request a copy of your criminal record from the California Department of Justice to ensure that the marijuana possession offense of one ounce or less has been cleared.

Access to criminal history records maintained by the DOJ is restricted by law to legitimate law enforcement purposes and authorized applicant agencies. However, individuals have the right to request a copy of their own criminal history record from the Department to review for accuracy and completeness.

To receive a copy of YOUR criminal history record, individuals must submit fingerprint images, pay a $25 processing fee to the DOJ, and follow the instructions below.

Complete Form BCIA 8016RR which you can fine here
Check “Record Review” as the “Type of Application”.
Enter “Record Review” on the “Reason for Application” line.
Fill out all your personal information.
Take the completed form to any Live Scan site for fingerprinting services. You can find a list of locations here.

It can take anywhere from 2 days up to 2 weeks for you to receive your criminal record. If the record is clear of the marijuana offense, you will not have to report the information to any requesting parties.

IV. What if the information on my record is incorrect?

If you feel the information contained within your criminal history record is incorrect, you may submit a formal challenge to the Department of Justice only after you have received a copy of your record from the Department, pursuant to California Penal Code sections 11120-11127.

Form BCIA 8706 “Claim of Alleged Inaccuracy or Incompleteness” will be mailed to you along with your record. Submit form BCIA 8706 and any supporting documentation to the Department of Justice at the address provided on the form. The challenge will be reviewed and a written response will be provided, along with an amended copy of your criminal history record if appropriate.

Please be aware that this simplified procedure only applies to marijuana possession offenses of one ounce or less, if you were convicted of one of the following, you will need to follow the court process for criminal expungement.

Possession over one ounce under California Health and Safety Code 11357.
Possession with intent to sell under California Health and Safety Code 11359.
Cultivation under California Health and Safety Code 11358.
Sale, Transportation or Distribution under California Health and Safety Code Sections 11360.
Sale or distribution to minors under California Health and Safety Code 11361.
You can find out more about this procedure here by downloading our ebook on the criminal expungement petition process.

V. How Expungement Helps in seeking Government Jobs

For questions by government employers or on government licensing applications, if you are asked if you have ever been convicted of a crime, you MUST respond with “YES—CONVICTION DISMISSED.” In California, government employers and licensing agencies (except for police agencies and concessionaire licensing boards) will treat you the same as if you had never been convicted of any crime.

VI. Do I need an attorney?

Contacting an experienced attorney is the best option to ensure success with your expungement petition.  Attorneys can provide assistance not only with filling-out and filing your documents, but by ensuring you meet local rules for service of process and providing tips for how to act/speak in court.  To learn more about the expungement process, contact our office today to discuss options for improving your future.