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Are you wondering how to erase old cannabis convictions? Now that recreational marijuana use is legal in California, individuals who were convicted in the past who want to clear marijuana charges are in luck if they don’t have convictions for serious crimes. Keep reading to learn more about the requirements to expunge records for marijuana and some other minor convictions.
Did California Expunge Marijuana Convictions?
A ballot initiative, Proposition 64, that was voted on in the November presidential election in 2016 legalized the adult recreational use of marijuana throughout California and established taxes on the billion-dollar industry.
What Does Marijuana Legalization Change?
Proposition 64 made marijuana use legal in California which ended adult arrests for legal marijuana use. But what about those who were previously convicted of a crime involving marijuana that would be legal today?
Prop. 64 allowed District Attorney to dismiss, seal, or redesignate past marijuana convictions and provide relief to hundreds of thousands of people convicted of a misdemeanor or felony for something that is now legal in California. Despite this positive change in the law, the future didn’t look that rosy for those whose past convictions have impaired their life because some prosecutors didn’t plan to devote resources to the task of going through past convictions to identify individuals who were eligible.
With up to 40,000 eligible convictions in a single county, that’s understandable because the process would have required more labor than they have available.Requesting the charges be expunged was an expensive proposition for many who are shackled with past marijuana convictions.
California County Prosecutors Erase Old Marijuana Convictions
The latest California cannabis news is more positive. A nonprofit organization out of San Francisco, Code for America, developed a program called Clear my Record that can search up to 10,000 records a minute to locate eligible marijuana convictions and is making the program available at no cost to all 58 counties to ease the labor-intensive task of identifying the appropriate records.
In addition, Assembly Bill 1793 provides greater uniformity in the way each county’s District Attorney will deal with retroactively clearing marijuana convictions. Although a prosecutor can choose to fight against overturning specific convictions, AB 1793 requires them to notify the public defender’s office and the court of any convictions for which they plan to fight against sentence reductions or expungements by July 1, 2020.
This is good news for hundreds of thousands of Californians whose lives have been hampered by marijuana convictions. Those past convictions, especially felonies, made it difficult or impossible to work in some industries, for companies with Federal contracts and for the Federal government. A criminal conviction can make it difficult to rent a home and impossible to obtain a student loan. Some people have been convicted for life without parole due to California’s 3 strikes law as the result of marijuana-related crimes.
The war on drugs had a disparate effect on people of color and those with low incomes who tended to receive harsher charges and sentences than white people and those who had the resources to fight the charges. Although the past disruption to their lives from this treatment can’t be erased, reducing the conviction or sealing the record can help them build a better future.
Each conviction can be handled differently. They can be reduced from a felony to a misdemeanor, dismissed, or sealed. Possession with the intent to sell was a felony that is eligible to be reduced to a misdemeanor under the new law. Automation is speeding up the process and reducing the cost for most people with a prior conviction related to marijuana.
What is the Clear My Records Program?
The Clear My Records Program helps expunge records for eligible individuals so they don’t miss out on the opportunity to clear marijuana charges that may be interfering with their quality of life.
There are important benefits to individuals who qualify. If the only convictions they have been expunged, the ability to qualify for a variety of benefits will open up for them. These benefits can include student loan eligibility, the ability to cross the border into Canada or get visas for travel to many countries, and the possibility to restore their gun rights.
How Can I Have My Old Marijuana Convictions Erased?
One of four things can happen to old marijuana convictions:
If the offense is no longer a crime, the case can be dismissed with all arrest and court records sealed.
If the offense is now a misdemeanor instead of a felony, the conviction can be reduced to a misdemeanor.
If the offense was a misdemeanor, it will be reduced to an infraction.
Nothing, if one of the exceptions applies to you. The exceptions include prior convictions of serious and violent crimes such as rape, child molestation, identity theft, or a crime that makes you a registered sex offender.
Additional outcomes may include:
If you are currently incarcerated, a sentence reduction may result in your release.
If you are on probation, it may be terminated.
The process can be simple or complicated depending upon whether there was more than one conviction, what the conviction was, and where the conviction occurred.
The process requires you to provide a reclassification packet with copies of your criminal record to the DA’s office and the Superior Court in each county where you were convicted. Counties may impose additional requirements such as requiring you to appear in person when you file the reclassification packet, additional paperwork, or a hearing.
Prop. 47 also provides relief for some other crimes by reclassifying the financial cut-off for felonies to over $950 for crimes including shoplifting, forgery, and receiving stolen property which makes such crimes eligible for reclassification to misdemeanors.
Which Convictions Can Be Dismissed and Sealed?
Health and safety code violations §11361.1(a)(1), § 11362.1(a)(2), 11362.1(a)(3), 11362.1(a)(4), 11357(b)(2), and 11362.1(a)(5).
These involve:
28.5 grams or less of marijuana for personal use and gifts
Transfer to other adults of 4 grams or less of concentrated cannabis
Smoking cannabis
Crimes involving the use of, gifting of, or sale of accessories
Growing and the harvest of six or fewer living marijuana plants
What Felonies Cannot be Expunged in California?
Health and Safety Codes §11357(b)(2), §11358(c), § 11359(b), and §11360(a)(2) are eligible unless the exceptions noted above apply, or the offense involved a minor or violated specified environmental laws during the commission of the crime that makes it punishable under Penal Code, §1170(h).
Eligible convictions include:
Possession, giving away, or transport of more than 28.5 grams of marijuana or 4 grams of concentrated cannabis
Planting, cultivating, harvesting, drying, or processing of more than six marijuana plants
Possession with the intent to sell
Do You Need an Attorney?
While it is possible to handle it yourself, preparing the reclassification packet can be complicated, especially if there is more than one clear-cut conviction in more than one county or there are other convictions. An attorney can also speed up the process as local DAs don’t have to decide which petitions to challenge until July of 2020.
If problems occur or your petition is denied, an attorney can help with the hearing.
04% BAC if operating a vehicle for hires such as a Lyft or Uber driver
05% BAC
Adult DUI, .08% BAC
It doesn’t matter if alcohol is the result of drinking alcohol or from cold medicines that contain alcohol. In addition to a DUI charge for blood alcohol content (BAC) above the limits noted above, legal and illegal drugs that impair a driver’s ability to operate a vehicle safely including cold medicines, pain killers, marijuana, and street drugs can result in DUI penalties.
What is a “Zero Tolerance” DUI law?
Anyone under the age of 21 who is discovered driving while intoxicated is subject to California’s zero-tolerance law for underage drinkers. This law says that a blood alcohol reading of 0.01% or higher is treated as a traffic infraction and punished with a suspension of a person’s driver’s license for one year.
The blood alcohol level is typically measured at the time of the stop using a breathalyzer or other similar device. Note that alcohol from any source, including medication like cough syrup, is subject to this law, and if the driver refuses to submit to this testing, he/she is subject to an extension of driver’s license suspension of up to three years.
However, just like adult DUI license suspensions, the driver has the right to challenge the license suspension in front of the DMV, or seek restricted driving privileges if the challenge is unsuccessful.
Underage Drinking with a BAC of 0.05% or Higher
In addition to the zero-tolerance law for underage intoxicated driving, California has another law that elevates the penalties for underage drivers with a blood alcohol level of 0.05% or higher. This reading is usually confirmed by an additional test at the police station.
This violation is still not considered a misdemeanor but does punish the driver with a one-year license suspension, a $100 fine, and a mandatory alcohol education program of three months or more. It is important to mention that any driver under the age of 21 that registers a blood alcohol level of 0.08% or more is considered legally impaired, and will be charged under the standard adult DUI offense laws.
Possessing Alcohol While Under the Age of 21
Finally, if an underage driver knowingly operates a vehicle that contains alcohol he/she could face charges for a misdemeanor offense unless the driver is accompanied by a parent, adult relative, or adult designated by the parent.
In addition, if the driver is not accompanied by an adult there is still a defense to this crime if the driver was in the process of following a parent’s instructions on transporting/delivering the alcohol.
Because this is a criminal offense, the possible penalties include impoundment of the vehicle for up to 30 days if it is registered in the name of the underage driver, a $1,000 fine, and a one-year suspension of the driver’s license.
What are the Penalties for an Underage DUI?
The penalties for underage DUI vary by the blood alcohol level, whether you submit to a chemical test when you are stopped, prior convictions, whether there are minors under age 14 in the vehicle being operated by an impaired underage driver, whether or not there is an accident, and if there is an accident, the extent of the injuries.
If the underage driver refuses to submit to a chemical BAC test, there is an automatic 1-year suspension of the driver’s license whether or not the arrest results in an under 21 DUI conviction. If the driver is an adult (age 18 – 20) and has a BAC of .05%, they will generally be required to attend a mandatory alcohol education program.
When injuries are involved, the driver may be charged with a misdemeanor or felony, at the prosecutor’s discretion. Injuries can lead to prison time that is tied to the extent of the injuries. In other words, the more severe the injuries caused by the impaired driver are, the longer the prison sentence is likely to be.
Getting an underage DUI in California when you have a prior conviction will lead to a 2-year revocation of your driver’s license.
An under 21 DUI that exceeds the legal limit for an adult DUI (.08% BAC) has stiffer penalties which can include 3 – 5 years of misdemeanor probation, fines, mandatory drug or alcohol education programs, and may include jail time.
When you refuse a lawful request for a chemical test to determine your blood alcohol level, the DMV can suspend or revoke your license regardless of the outcome of your DUI charge and you may be given enhanced penalties if you are convicted.
How Many People are Killed by Drunk Drivers?
According to the Center for Disease Control (CDC), a government agency that tracks statistics related to death and injury:
The risk that an underage driver between the ages of 16 – 20 will die in a car accident is 17 times higher when their BAC is .08% than it is when they are sober. That’s a sobering statistic, especially when added to the three times greater risk a teen driver has of dying in an automobile accident even when they are sober.
One out of five teenagers who are involved in a fatal accident drank alcohol before the crash.
Every day, six teenagers’ lives are cut short because they die from injuries sustained during a motor vehicle accident. Many of these deaths were preventable. Not drinking and driving reduce the risk of premature death.
What Happens if You Get a DUI in California under 21?
If you are arrested, you should use your best manners. Be polite. Do your best to remain calm. Use deep breathing exercises to help yourself calm down. Follow all the officer’s instructions. Refusing to follow instructions makes things worse for you and may increase the charges against you.
Do not admit to anything. In fact, say as little as possible. Don’t volunteer information. Provide the officer with your license, proof of insurance, and vehicle registration. If they ask you questions, tell them you need to talk to your lawyer before you answer.
However, as an underage driver, refusing to submit to a BAC test will result in automatic penalties. You can, however, refuse field sobriety tests without penalties. Pay attention to what is said, the order it is said, and specific words. For example, if the officer tells you that you may lose your license for a year if you refuse to take the BAC instead of you will lose your license, it can make a difference in court.
If you are arrested, you’ll want the best criminal defense attorney in Los Angeles to represent you so contact us as soon as possible. You have a very limited time to request a hearing (10 days).
Finally, when it is all over if you qualify, you should look into having your DUI expunged from your record as a DUI in California will show up on background checks employers and landlords conduct in the future if it is not expunged.
On July 1, the new budget was active and allowed for $5 million towards funding a new program that allows victims of crimes to confront their offenders. The money was used to fund the program for 5 yearsand it will allow offenders of any age to participate, not just those who are juvenile which has traditionally been the case with this type of program.
The program pairs victims and offenders before the conviction occurs. The benefit for offenders is that if they go through the program they can avoid a criminal record which impacts the rest of their lives outside of prison.
How does Diversion Work in California?
Those who are proponents of the plan believe that it is going to be beneficial for both survivors as well as criminals. Survivors get closure and a piece that is needed for them to help heal more thoroughly. Offenders may be deterred from continuing to repeat criminal offenses once out of prison because they have had the opportunity to leave their sentence with a clean slate, thus giving them a second chance at life without the blot of crimes on their records.
It is a program that allows for a more personal look at crimes for both parties and participates in forgiveness which may have a strong and valuable impact in the long term. It is a means to make a bad situation into a good one for both sides of the equation.
Who is Eligible for Diversion Program in California?
This is a state-funded program and only those offenders who do not exhibit an extensive criminal record are eligible. Additionally, those who have been convicted of sex crimes and murder will not be eligible. Crimes that are highly associated with violence such as robbery, assault, burglary, and criminal threats would be eligible.
Working together with community groups, law enforcement, defense attorneys, the offenders, and victims a plan will be developed that will meet the needs of the survivors while also promoting a strategy to help the offender avoid engaging in more crimes in the future. In order to accomplish this, substance abuse treatment, counseling, education, and job training may all play a role. Victims can have the ability to obtain restitution or even a letter of apology.
There will be tracking done on those who successfully complete the totality of the program to determine its effectiveness. Looking at factors like victim satisfaction as well as new crimes committed or lack of crimes committed by offenders will be evaluated.
Get the Best Outcome Possible with Proper Defense
Individuals who have been charged with criminal offenses have the right to a solid defense. The use of a Southern California criminal defense attorney at the Manshoory Law Group, APC can help you when you are facing a criminal trial. We specialize in criminal defense and we are experts in criminal law.
We know about all the opportunities that are available to you to help you with your case, such as new programs including this diversion program opportunity. You don’t have to go through this process alone, our team of Los Angeles criminal defense attorneys can help.
Call us at 877-977-7750 and speak to one of our resourceful Southern California criminal defense attorneys today.
The Federal Controlled Substances Act (The Act) was passed in 1970 in response to growing public concern about drug abuse. The Act condensed a mishmash of prior laws under one law and created a classification system for controlled substances.
Congress expressed concern about the detrimental effect on the health and welfare of Americans when the drugs were used improperly.
How Does Drug Classification Work?
The Act created five categories of drugs and created a schedule based on two main factors:
Whether there were legitimate medical uses for the drug that is necessary to provide for health and wellbeing
The potential of the drug to have a detrimental effect on mental or physical health, including the potential for physical or psychological addiction
Other factors that are considered when a drug is classified include the history of the substance, including whether it has been abused in the past, scientific knowledge about the substance, the drug’s relationship to other controlled substances, and the potential effects on public health.
Controlled substances in this category have a high potential for abuse and no accepted medical uses. The potential for abuse is derived from a combination of the mood-altering effects of the drug and whether it is addictive. Examples of Schedule I drugs include heroin, LSD, marijuana, and some club drugs, such as ecstasy.
Schedule II drugs are distinct from Schedule I drugs because they have accepted medical uses. However, they are considered dangerous as the result of their potential to cause addiction. The addiction can be physical or psychological. In some cases, it is not the presence of a specific drug, but the quantity of the drug in a prescribed medication that determines whether it is a Schedule II drug. For example, a drug with less than 15 milligrams of hydrocodone like Vicodin is a Schedule II drug. Examples of drugs in this category include cocaine, OxyCotin, Adderall, and Ritalin.
Drugs listed on Schedule III have, at most, moderate potential for addiction and may present a low likelihood of physical or psychological dependence. The dosage is a factor in determining whether a drug is a Schedule III drug. For example, Tylenol with codeine-containing less than 90 milligrams of codeine per dose is a Schedule III drug. Other drugs in this category include testosterone, anabolic steroids, and ketamine.
Schedule IV
Medications in this category include mood-altering drugs with a low risk of dependence, milder pain relievers such as Tramadol, and treatments for insomnia like Ambien. Other Schedule IV drugs include Xanax, Darvon, Darvocet, Valium, Soma, Ativan, and Talwin.
Schedule V
Substances, chemicals, and drugs with the lowest risk of abuse and addiction are classified in Schedule V. While they may contain low dosages of narcotics, the doses are very small. They are most commonly used to treat common medical problems such as diarrhea, coughs, and congestion. Examples of Schedule V drugs include Robitussin AC, Lyrica, Logen, and Kapectolin. An alphabetic list of scheduled drugs is available.
Although The Act defines controlled substances as “a drug or other substance, or immediate precursor, included in Schedule I, II, III, IV, or V,” an unlisted drug may be treated the same as a Schedule I or II drugs for purposes of prosecution when it meets the same criteria as listed drugs in those categories.
For example, designer drugs that mimic the effect of drugs in these classifications are not approved as legal medications in the United States.
Can a Drug be Rescheduled?
Drugs may be scheduled temporarily or permanently in a variety of ways. Congress always has the authority to add or remove drugs or change their classification. Congress delegated the authority to add drugs to the United States Attorney General when it passed the Comprehensive Crime Control Act of 1984, which gives the Attorney General the authority to temporarily add substances as Schedule I controlled substances when they pose “imminent hazards to public safety.”
When the Attorney General exercises this power:
The substance immediately becomes subject to the registration and recordkeeping requirements required for Schedule I drugs.
The drug will remain listed for two years with the potential of adding a 3rd year before the listing must be removed or made permanent.
The creation of synthetic drugs made it necessary to create a way to quickly respond when new and potentially dangerous drugs are introduced.
Additionally, drugs may be moved from one category to another by either Congressional or administrative action by the Drug Enforcement Agency (DEA). This includes the ability to remove a drug from the schedule entirely. The classifications make specific drug offenses subject to mandatory minimum sentencing requirements.
Anyone facing drug charges should be familiar with the classification system and the recordkeeping and registration requirements to avoid criminal prosecution.
Part of the job of a law enforcement officer is to search for evidence of a crime, take that evidence for examination, then use it in a trial. This is called “search and seizure”. The Fourth Amendment of the U.S. Constitution and Article I, Section 13 California Constitution have laws against “unreasonable search and seizure”. The laws surrounding what makes a search reasonable or unreasonable are complex. We will explain them in this article.
What Makes A Search And Seizure Legal in California?
There are three components to look at. The first is whether or not the area searched is considered to be private by society. This is called “reasonable expectation of privacy.” Places like your home, your electronic devices, or even a hotel room or a tent fall into this category. But the abandoned property, like trash you’ve thrown out or something you threw out of a car, do not have this expectation and are fair game for search and seizure.
If it is private, the police may still search it if one of two things apply. The first is if they have a search warrant. The laws in California for search warrants can be found here. Police have to convince a judge that there may be evidence that a felony was committed. If the judge believes there is probable cause that this is true, they will write a warrant that gives the police the right to search that area for evidence related to that crime alone. The last thing to consider is whether the search would fall into one of the many exceptions to the warrant law.
These include things like:
The owner of the property gave consent to a search.
You’ve been arrested lawfully and the police want to safeguard evidence that might be destroyed.
There is an immediate danger to life or property.
An item is in plain view and obviously incriminating.
There are also specific exceptions for vehicles and electronic devices that are derived from these ideas.
Take vehicles, for instance:
During temporary detention, an officer might believe you have access to a weapon or is otherwise dangerous. The police can search to preserve the safety of everyone.
A shakier reason is if the police believe they have probable cause that a vehicle contains evidence of a crime, like if they believe they smell alcohol or drugs.
For electronic devices:
Police can access the device in an emergency situation or aid in pursuing a fleeing suspect.
Police can also search devices when you’re crossing an international border if they have probable cause.
Note that police can still take an electronic device and hold it until they get a warrant for a legal search.
Remember if you give consent to the police for a search then any evidence they find is legal! It doesn’t matter if the area has a reasonable expectation of privacy. If you consent to a search, you waive your Fourth Amendment rights.
What Constitutes An Illegal Search And Seizure?
If the police or the judge doesn’t follow the rules, then the search and seizure could be deemed illegal. For example, a warrant could be challenged if it can be proven that:
The police mislead the judge.
The warrant was too broad.
The search exceeded the limits of the warrant.
The judge was biased
If the police do a search based on probable cause or due to one of the exceptions, they will have to prove that their search fell under the exceptions. If it can be proven otherwise, the search and any evidence collected in relation to the search will be illegal evidence.
The trickiest areas are when it’s unclear whether or not society has decided there is a reasonable expectation of privacy. Electronic devices are used to fall into this category. Prior to 2014, there was no reasonable expectation of privacy for electronic devices in California. Police were free to search phones and computers as they pleased. However, that is now illegal without a warrant thanks to a California Supreme Court ruling.
What Happens If An Unlawful Search And Seizure Is Discovered?
Unlawful search and seizure does happen, but how can you challenge it? Your criminal defense lawyer can file something called a “motion to suppress” before your trial starts. In the motion, your criminal defense lawyer will offer their arguments about why a search and seizure was illegal and why the evidence found should not count under California’s “exclusionary rule”.
If the judge agrees that the search was unlawful, the state will be unable to use any evidence collected in that search. Depending on the nature of the crime and the evidence suppressed, the prosecution may be forced to use a lesser charge or to drop all charges because they lack the evidence to proceed.
There is also a second way your lawyer can challenge the legality of a search and seizure. Sometimes the police will gain legal evidence indirectly through an illegal manner. If there is no way they could have found that evidence without the illegal search and seizure, that evidence can be excluded under the “fruit of the poisonous tree” rule. However, the prosecution does have ways to challenge this so it is a weaker way to suppress evidence.
One of the things that a criminal lawyer will do for you is to examine how the police obtained their evidence. If they believe that it was obtained illegally through an unlawful search and seizure it will be challenged. If the circumstances fall in your favor, you may never have to go to trial.
Ask for Help from Illegal Search and Seizure Lawyer
However, if your case goes all the way to trial without challenging the evidence then it will be much harder to dismiss what is presented. This is why it is so crucial that you get a lawyer skilled at challenging unlawful search and seizures on your side as soon as possible after your arrest.
If you are arrested in Los Angeles, don’t wait until it is too late. Contact Manshoory Law Group for a consultation.Explain your reasons why you think the evidence against you was illegally obtained. We will fight hard to force the prosecution to prove that they did everything by the book.
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