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Published on Friday, February 22, 2013

Vacating misdemeanors including marijuana charges passed out of committee

The original language of HB 1087 allowed for an unlimited number of vacations of certain misdemeanors. Currently, anyone can vacate a single misdemeanor conviction under certain conditions. Testimony during the hearing indicated significant concern that the bill was too broad. The committee amended the bill to allow only four vacations per offender.

HB 1661 also deals with vacation of misdemeanors. It would allow people to vacate any misdemeanor possession of marijuana conviction with fewer restrictions and no time limits. Currently, an individual can vacate a marijuana conviction only after waiting three years and completing their sentences. In light of the passage of I-502, the intent was to recognize that certain possession is no longer a crime. AWC does not oppose the intent of the bill and appreciates the will of the voters. However, we expressed some technical concerns. A misdemeanor conviction of possession is anything under 40 grams of marijuana. Currently law under I-502 states one ounce (28 grams) is legal possession. So potentially, a crime of possession from 28 grams to 40 grams could be vacated, even though that amount is still an illegal possession under current law. Minors under 21 who are convicted of having less than 40 grams would be allowed to vacate their convictions as well.

With HB 1661 and HB 1087, AWC is concerned about cases where felony charges are reduced to misdemeanors and then offenders are allowed to erase them from their record. Again, HB 1661 would allow for post I-502 marijuana convictions to be vacated in an expedited manner; however, these would still be illegal possessions over one ounce. We aren’t sure this is the policy the Legislature intends to have in place, and we raised these issued during the public hearing.