Background. Prior to Prop. 207, an individual in Arizona who was caught with possessing small amounts of marijuana and did not have a valid medical marijuana card was likely arrested and charged with the Class 1 misdemeanor of possession of marijuana. If they stored the marijuana in a bag or other container, or had a lighter or vape device in their possession as well, they also might have been charged with another misdemeanor, possession of drug paraphernalia.
In facing prosecution on those charges, the individual was likely given one of three options by the prosecutor:
- formally enter an agreement to have their charges end in a dismissal;
- plead guilty to one or both charges; or
- proceed to trial and be found either guilty or not guilty.
Regardless of the outcome, the charges were typically entered into a national database that could be accessed by other law enforcement agencies and by potential employers.
Even if the charges were dismissed or the trial ended in an acquittal, the initial arrest record and charges filed remain in the national database.
Expungement. Now, under A.R.S. § 36-2852, an individual who was arrested, charged or convicted of possessing marijuana or drug paraphernalia is eligible to have their records expunged, provided their case is eligible for expungement.
Eligibility is easy to determine. The arrest, charge or conviction must have been for possessing drug paraphernalia directly linked to marijuana use, and/or possession of marijuana less than:
- 12.5 concentrated grams, or
If the case meets those criteria, an attorney should be able to expunge the case from that individual’s record, regardless of when it was created.
- The expungement process should generally follow these steps:
- The individual’s attorney files a petition with the court that had jurisdiction for the case.
- The court asks the prosecuting agency whether it objects to the expungement.
- If the prosecuting agency does object, the court will likely conduct a hearing.
- At the hearing, the prosecuting agency would be required to produce clear and convincing evidence that the individual’s record is not eligible for expungement.
- If the prosecuting agency fails to meet that requirement, the court should proceed to expunge the individual’s prior arrests, charges, and convictions associated with marijuana possession.
- The court will notify the prosecuting agency and the Arizona Department of Public Safety (DPS) of the expungement.
- DPS will inform all state and federal law enforcement agencies of the expungement and then seal and separate the expunged records so that they no longer appear in the national database and can be accessed only by the individual or the individual’s attorney.
If you or someone you know may be eligible for expungement of a marijuana-related offense, they should contact their attorney. If the case is in Pinal County and the individual does not have an attorney, they are welcome to contact the Fitzgibbons Law Offices for a legal consultation.
Questions? Contact Michael Starrett at 520-426-3824 or by email. 
