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How to Get Your Prior California or Nevada Cannabis Convictions ClearedAugust 14, 2018
Disclaimer: Keep out of reach of children. For use only by adults 21 years of age and older.
Now that legal cannabis has come to California and Nevada, you may be wondering whether your prior cannabis convictions are going to get thrown out. Even though the laws have changed, having a prior conviction on your record can still haunt you for the rest of your life. A misdemeanor record could hinder your ability to get a job or affect your eligibility for federal student aid - even if you got arrested and convicted in a different state but attend school in a place where cannabis is legal! On top of impacting your employment and education prospects, your past convictions could also influence how a police officer interacts with you and how the court sentences you over future infractions.
However, having your record cleared is a bit less straightforward than many cannabis advocates may have hoped; yes, you can have your previous records expunged or sealed, but it won’t happen automatically. You’ll need to wait a predetermined period of time (and avoid further infractions), complete the appropriate paperwork, submit your formal request to the court, pay a fee, and wait for a response from the district in which you were convicted. Each request is only applicable to one conviction, so if you have multiple cannabis convictions you will need to complete this process more than once.
Applying to have an old conviction cleared may be a bit confusing for readers, so we’ve broken it down for both California and Nevada residents to understand the step-by-step process of having prior cannabis records cleaned up.
Getting California Cannabis Convictions Dismissed
In California, it is now legal for adults to possess up to one ounce of cannabis flower or up to eight grams of concentrates. However, possession of over 28.5 grams is considered a misdemeanor offense punishable by up to six months in prison and a $500 fine.
Whether you were convicted of a cannabis crime before it was legalized or you’ve exceeded the possession limits in post-legalization California, prior misdemeanor cannabis convictions can be dismissed, or “expunged” - meaning they’re effectively erased from your record. The process for getting your records cleaned up will depend on how the court carried out your conviction.
CA Residents Whose Cases Were Dismissed, Acquitted, Or Put Through A Pre-Filing Diversion Program
If your case never led to a conviction, then there’s no conviction to have dismissed. However, you may be eligible to have your previous arrest records sealed. You’ll need to file a petition with the court under Penal Code 851.8. You may need to give notice to the prosecutor or other parties involved, so contact the court to determine what your obligations are in order to proceed with having your records sealed.
CA Residents With a Previous Felony
If you have a previous cannabis-related felony conviction, you can appeal to have it retroactively reduced to a misdemeanor charge. However, you’ll need to have met certain requirements set forth by the court. Contact the court to file a petition under Penal Code 17(b) to reduce your felony to a misdemeanor. Once your prior felony conviction is reduced, you may be able to petition to have the reduced conviction removed from your record under Penal Code 1203.4.
Petitioning The Court To Clean Your Record Under Penal Code 1203.4 and 1203.4a
If you were convicted of a crime (whether it’s a civil infraction, a misdemeanor, or a felony) but you were sentenced to a fine, probation, and/or county jail but NOT state prison, you may be eligible for a dismissal. If the court approves your dismissal request, your previous plea of “guilty” or “no contest” will be changed to “not guilty,” and the conviction will be permanently dismissed.
In order to qualify for a dismissal in California under Penal Code 1203.4, you need to have completed probation (if you were ordered to complete probation) and paid off any fees that were due.
You may be eligible for a dismissal under Penal Code 1203.4a if the conviction was a misdemeanor or infraction that occurred over 12 months ago.
In both cases, you’ll need to have complied with every court order and have avoided further infractions in the ensuing year or more - meaning that you have not been charged with or convicted of any other crimes. You should also prepare to pay up to $150 to the court and an additional $150 each to the city and county you are petitioning, though the court can reduce or eliminate those fees on a case-by-case basis for individuals who would face undue hardship to pay those costs.
To apply for a dismissal, either for a misdemeanor or a felony charge:
-Print out a copy of California Form CR-180: Petition For Dismissal
-Fill in your name under “Defendant” and list your contact information. If a lawyer is representing you, you’ll need to include their name in the space provided. However, you can represent yourself in submitting this form; in that case, write “Pro Per” instead of a lawyer’s name to indicate that you are representing yourself.
-Fill in your case number and the date of your conviction.
-If you were granted probation, check box #2 and provide the necessary information in the appropriate section. Then select “1203.4” to indicate which penal code applies to your case.
-If you were not granted probation, check box #3, then check box A or B (depending on your situation). You’ll then need to select “1203.4a” to indicate the penal code that applies to your case.
-Sign and date the form, then contact your local county superior court to determine where your request should be submitted.
-Though you can complete and submit these forms on your own, some people may prefer to work with a lawyer. Contact a public defender in your county for more information on how to have your records sealed and/or dismissed.
Getting Nevada Cannabis Convictions Sealed
In the State of Nevada, courts will not outright dismiss a prior cannabis conviction. However, you can petition to have your records sealed. This is effectively similar to having a conviction dismissed, as the previous conviction will no longer appear on a background check or in any employment screening. There is typically a waiting period after conviction before the record may be sealed, though the specifics will depend on how the case was tried.
NV Residents Whose Cases Were Dismissed
If your case was dismissed in court, you may immediately apply to have your records sealed. Even though you weren’t convicted, your arrest will still show up on your record unless you apply for the court to seal your records. Once the court approves your request, your arrest is effectively erased. There is no waiting period for cases that were dismissed in court.
NV Residents With Misdemeanor Cannabis Convictions
Misdemeanor cannabis arrests include pre-legalization possession cases as well as certain post-legalization infractions. Even though it is currently legal to possess up to one ounce of cannabis flower (or an eighth of an ounce in concentrates) in Nevada, smoking in public is a misdemeanor that can carry fines up to $600. Possession over the legal limit of one ounce is also a misdemeanor with a $600 fine. In either case, you must wait at least one year before petitioning to have your misdemeanor cannabis conviction sealed.
Category E Felony Cannabis Convictions
If you have one to two previous convictions of possessing over one ounce (but less than 50 pounds), you must wait at least two years before you can petition to have your records sealed.
Category D Felony Cannabis Convictions
Three or more convictions of possession of over one ounce (but less than 50 pounds) means you must wait at least five years before petitioning the court to seal your records.
No matter what your initial charge was, you can expect to pay a court fee for filing a petition to seal your record. This fee will vary, depending on where your conviction took place. In Las Vegas, for example, you’ll need to pay approximately $150. Find specific information for your county here. Note that if the court rejects your record sealing request, you’ll have to wait at least two years before applying again. After two rejected requests, the court will not accept further record sealing applications for that particular conviction. The process typically entails the following steps, but again, it may vary between jurisdictions:
-Contact the police department where you were arrested to obtain a SCOPE record, which details your arrests and convictions.
-If you were convicted of a crime, you’ll also need to get discharge papers from the court clerk in the district where you were arrested.
-Put together three typed, professional documents: a formal petition to have your records sealed, an affidavit confirming that your petition is valid and accurate, and an order to have the record sealed if the petition is accepted. You may be able to find a template through your county’s website - for example, the Clark County Court District has put up template samples that can be easily used for your own record sealing application.
-Make three copies of every piece of paperwork you’ve completed. Submit your completed application to the District Attorney’s office in the county where you were arrested and convicted. Again, this process may vary from one county to the next, so be sure to check with your county on what documents they need, how much you’ll have to pay in fines, and where to send your completed application.
Once your application is submitted, it will take several weeks to hear a response. If the District Attorney sends you a signed order allowing your records to be sealed, you’ll need to present all of your paperwork (including the signed order) to the county clerk where you were convicted. If the judge agrees to the seal order, they will return your paperwork, and it’s up to you to give signed copies of the seal order to any and all agencies that may have your criminal record on file. For example, if you were arrested in Las Vegas, you may need to submit paperwork to the Las Vegas Police Department, the Clark County District Attorney Office, and the Nevada Public Safety Records Bureau. Check with a lawyer or public defender in the county of your arrest to ensure that you have submitted the proper paperwork to all the correct agencies.