Expunging a Marijuana Conviction Under Prop 64

Prop 64 Marijuana Expungement FAQ


Expunge or Reduce Your Old Marijuana Conviction
A Guide to Expunging a Marijuana Conviction under Prop 64

RGB LAW GROUP has been at the forefront of marijuana law and “cognitive liberty” for more than 25 years. Mr. Boire is the author of the 1993 underground classic book Marijuana Law, and is one of California’s most experienced expungement lawyers.

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This guide examines the expungement and felony reduction provisions of Prop 64. [Last Update: 01/03/2016.]

Under Prop 64 (“The Adult Use of Marijuana Act”), which was passed by California voters on November 8, 2016, responsible adult use of marijuana has largely been freed from criminal prohibition and is now regulated and taxed.

Among its many stated purposes, Prop 64: “[a]uthorize[s] courts to resentence persons who are currently serving a sentence for offenses for which the penalty is reduced by the Act, so long as the person does not pose a risk to public safety, and to redesignate or dismiss such offenses from the criminal records of persons who have completed their sentences as set forth in this Act.”

As a newly enacted proposition, the analysis presented here is limited to the plain language of the proposition. As occurred with Prop 47 (which reduced some felonies to misdemeanors and allowed for post-conviction relief), we expect that many of the provisions of Prop 64 will be subject to litigation and interpretation by the courts. Please contact us for comprehensive individualized legal advice.

What marijuana convictions can be completely expunged under Prop 64?

Under Proposition 64 it is now lawful for adults (21 and over) 1 to:

  • “Possess, process, transport, purchase, obtain, or give away” to other adults one ounce (28.5 grams) or less of marijuana (Health & Saf. Code, § 11362.1(a)(1)).
  • “Possess, process, transport, purchase, obtain, or give away” to other adults 8 grams of less of concentrated cannabis (Health & Saf. Code, § 11362.1(a)(2)).
    •  Note: There is an inconsistency here as Health & Saf., Code, § 11357(b)(2), as revised by Prop 64, set the limit for concentrated cannabis at 4 grams or less.
  • “Possess, plant, cultivate, harvest, dry, or process” six or fewer living marijuana plants and to possess the marijuana produced by those plants (Health & Saf. Code, § 11362.1(a)(3)).
  • smoke or ingest marijuana products (Health & Saf. Code, § 11362.1(a)(4)).
  • “possess, transport, purchase, obtain, use, manufacture, or give away” marijuana accessories to another adult (Health & Saf. Code, § 11362.1(a)(5)).

This means that if prior to Prop 64 you were convicted of any of the above marijuana offenses, you are now eligible to return to court and petition to have your conviction completely expunged. [Retain RGB LAW GROUP as your Prop 64 Attorney.]

What old Marijuana Felonies can be Reduced to Misdemeanors under Proposition 64?

If you were convicted of any of the following felony offenses prior to the passage of Prop 64, you can now petition to have your conviction(s) reduced to a misdemeanor. (Yes, this restores your gun rights.)

  • Possession of more than 28.5 grams of marijuana or more than 4 grams of concentrated cannabis by a person who is 18 years old or older, is now a misdemeanor punished by a maximum of 6 months in county jail and/or a fine of $500. (Health & Saf., Code, § 11357(b)(2), as revised by Prop 64.)
    • However, if the person has prior convictions for certain specified offenses, or violated specified environmental laws during the commission of his or her offense, the offense can be a felony punished under Penal Code, § 1170(h).
  • Planting, cultivating, harvesting, drying or processing more than six marijuana plants by a person 18 years old or older is now a misdemeanor, punishable by a maximum of 6 months in county jail and/or a fine of $500.(Health & Saf., Code, § 11358(c), as revised by Prop 64.)
    • However, if the person has prior convictions for certain specified offenses, or involved a minor in the offense, or violated specified environmental laws during the commission of his or her offense, the offense can be a felony punished under Penal Code, § 1170(h).
  • Possession of any marijuana for sale by a person 18 years of age or older is now a misdemeanor punished by a maximum of 6 months in county jail and/or a fine of $500. (Health & Saf., Code, § 11359(b), as revised by Pro 64.)
    • However, if the person has prior convictions for certain specified offenses, or involved a minor in the offense, or violated specified environmental laws during the commission of his or her offense, the offense can be a felony punished under Penal Code, § 1170(h).
  • Transporting, importing into California, selling, furnishing, administering, or giving away, or offering to transport, import into this state, sell, furnish, administer, or give away, or attempting to import into this state or transport 28.5 grams of marijuana or more, by a person 18 years old or older, is a now a misdemeanor punished by a maximum of 6 months in county jail and/or a fine of $500. (Health & Saf., Code, § 11360(a)(2).)
    • However, if the person has prior convictions for certain specified offenses, or involved a minor in the offense, or violated specified environmental laws during the commission of his or her offense, the offense can be a felony punished under Penal Code, § 1170(h). [Retain RGB LAW GROUP as your Prop 64 Attorney.]

What old Marijuana Crimes are now Infractions?

  •  Giving away, offering to give away, transporting, offering to transport, or attempting to transport not more than 28.5 grams of marijuana, other than concentrated cannabis, by a person 18 years of age or older is now an infraction and shall be punished by a fine of not more than one hundred dollars ($100) (Health & Saf., Code, § 11360(b), as revised by Prop 64.)

Do I Have to Prove that I had One Ounce or Less of Marijuana or Six Plants or Less?

No. Proposition 64 places most of the burden of proof on the prosecutor. To obtain relief under Prop 64, you just need to establish a prima facie case. This means that you simply allege in a petition filed in court that you are entitled to relief under Prop 64. The burden of proof then shifts to the prosecutor, and he or she must prove – by “clear and compelling evidence”– that you do not qualify for an expungement or reduction under Prop 64.

What Actually Happens to My Record if the Judge Grants the Petition?

If the marijuana offense for which you were convicted is no longer an offense under Prop 64, then the case will be dismissed and all arrest records, all court records and Dept of Justice records regarding your offense will be sealed.

If the offense was a felony prior to Prop 64, but was made a misdemeanor under Prop 64, then your felony conviction will be reduced to a misdemeanor “for all purposes.”

If the offense was a misdemeanor prior to Prop 64, but was made an infraction in Prop 64, then your misdemeanor can be reduced to an infraction “for all purposes.”

If my Gun Rights were Lost as a Result of a Marijuana Felony that is Now a Misdemeanor or No Longer even an Offense, will Relief under Proposition 64 Restore my Gun Rights?

Based on the plain language of Prop 64 as well as the intent and purpose of the proposition, relief under Proposition 64 will restore your gun rights. Remember, this will not happen automatically. Rather, you must proactively seek the expungement or felony reduction in court by petitioning for relief under Prop 64. [Retain RGB LAW GROUP as your Prop 64 Attorney.]

On what Grounds can the Judge Deny a Prop 64 Expungement?

Most of denials for expungements under Prop 64 will occur because the person either possessed more than 1 ounce of marijuana or was growing more than 6 plants. In that case, you should be seeking to have your felony reduced to a misdemeanor.

Another ground for denial is if the judge determines that you pose “an unreasonable risk of danger to public safety.”

When Can I file for an Expungement or Reduction under Prop 64?

Prop 64 is effective on November 9. You can, and should, file right away. [Retain RGB LAW GROUP as your Prop 64 Attorney.]

What if I’m Still Serving my Sentence or Still on Probation?

If your marijuana offense is one that is now either completely lawful under Prop 64 or is now less severely punished (see earlier in this FAQ), you can immediately petition to expunge your conviction and/or reduce your sentence.

Automatic Sealing and Destruction of Some Marijuana Offense Records after 2 Years.

With the passage of Prop 64, records of an arrest or conviction for personal possession of one ounce or less of marijuana (Health & Safety Code, § 11357 subdivision (b), (c), (d), or (e)) or for for giving away, offering to give away, transporting, offering to transport, or attempting to transport not more than 28.5 grams of marijuana (Health & Safety Code, § 11360, subdivision (b)), are automatically sealed and destroyed two years after the date of conviction (or the date of arrest if no conviction). This applies to all records of the arrest, all court records, and all records kept by the California Dept of Justice. (Health & Saf. Code, § 11361.5) One exception is for people who are “incarcerated for an offense subject to this subdivision.” For such persons, the two-year period shall begin to run from the date the person is released from custody.

  • Note: Although the government is supposed to automatically destroy such marijuana offense records after 2 years,  it is very important to confirm that the records have indeed been destroyed as RGB LAW GROUP has found many cases in which such records were not automatically destroyed under a previous marijuana-records-destruction-law.)

When does Proposition 64 take effect?

The record-cleaning sections of Prop 64 take effect immediately.

So, how do I expunge my marijuana conviction or reduce it under Prop 64? Do I need a lawyer?

There are two options. You can do it yourself or you can retain a professional attorney such as RGB LAW GROUP to handle your Prop 64 expungement or reduction.

Our founder, Richard Glen Boire has been a leader in the marijuana reform movement and “cognitive liberty” for decades and has 25+ years of expertise at expunging California convictions. We would be proud to serve as your Prop 64 attorney. We handle everything from start to finish of your case, including all court hearings.

We can start your Prop 64 expungement or reduction right away.

If you would like to have Mr. Boire serve as your Prop 64 lawyer, the first step is to get your official marijuana record from the Department of Justice and Mr. Boire’s Prop 64 Expungement Plan. To do this, or to learn more, just click the button below.

Button to start expungement with RGB Law Group

Summary
Expunge a Marijuana Record under Prop 64
User Rating
4 based on 28 votes
Service Type
Expunge a Marijuana Record under Prop 64
Provider Name
RGB LAW GROUP,
Area
California
Description
California's Proposition 64 (The Adult Use of Marijuana Act) has legalized many marijuana activities. In addition, Prop 64 allows people convicted of old marijuana offenses to return to court and have their convictions dismissed, expunged, sealed or reduced. This Guide to Prop 64s Marijuana Expungement Provisions was prepared and maintained by RGB LAW GROUP - leaders in marijuana law and record expungement.
  1. Prop 64 makes many distinctions between adults and minors. For simplicity, this FAQ focuses on adults (21 and over) unless otherwise specified. If you are under 21, or were a minor at the time of your offense, contact RGB LAW GROUP for to serve as your Prop 64 lawyer.

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After receiving my expungement papers in the mail today, I am nothing less than awestruck by Mr. Boire’s abilities and that of Sophia and the rest of the team – thank you all !!! My situation hung over my head for many years preventing me from moving forward in my life and career. Mr. Boire was extremely honest with me at the start vis-a-vis expectations, but everything turned out so much better than either of us could have anticipated. I attribute this positive outcome entirely to Mr. Boire’s legal skills and professionalism. This was the best investment I’ve ever made and money well spent. I wish everyone at RGB and Mr. Richard Boire continued success with their truly unique and life changing legal services.

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