More pot convictions could be expunged, thanks to a new Arizona court ruling | Phoenix New Times


More old marijuana convictions now eligible for expungement in Arizona

"We should be able to help who knows how many more people."
Until Court of Appeals Judge Brian Furuya's May 30 ruling, it was unclear whether or not those convicted of possession of marijuana "for sale" were eligible for expungement.
Until Court of Appeals Judge Brian Furuya's May 30 ruling, it was unclear whether or not those convicted of possession of marijuana "for sale" were eligible for expungement. O'Hara Shipe
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Arizonans convicted of possessing marijuana for sale may have their records cleared under a new court ruling, broadening the number of past marijuana cases that are now eligible for expungement.

In 2020, Proposition 207 — the ballot measure that legalized marijuana for recreational use in Arizona — included a provision that allowed people who had been convicted of possessing 2.5 ounces or less of marijuana for personal consumption, or weed paraphernalia, to petition to get their convictions expunged. Under the measure, thousands of people in Maricopa County have since cleared their records.

But a unanimous ruling from the Arizona Court of Appeals on May 30 made it clear that people convicted of possession of marijuana for sale with small amounts of cannabis were also eligible for expungement. Prior to the ruling, the decision was left to Superior Court judges. Appellate Judge Brian Furuya wrote the decision for the three-judge panel, which also included Judges Jennifer Campbell and Paul McMurdie.

Joe Watson, a spokesperson for the Reclaim Your Future campaign, which assists people expunging their records, called the ruling a major victory.

"Our coalition has always gone into this believing that we could expunge both possession and possession for sale cases. So we've been trying to do that," he said. "Now that we've gotten this ruling, we should be able to help who knows how many more people."

Randy McDonald, the supervising attorney at the Arizona State University Sandra Day O'Connor College of Law's Post-Conviction Clinic, said the ruling was good news for many of his clients. "A lot more people are going to be eligible for expungement," he said.

Prior to Furuya's ruling, uncertainty around possession for sale cases meant that expungement was often left up to individual judges, McDonald said. "It's fundamentally not fair that whether or not your petition gets denied depends on what judge you're in front of," he added.

In a May 30 statement, Martin Hutchins, an attorney and the program manager for the Reclaim Your Future Campaign, called the decision "a great embodiment of the will of Arizona voters who elected to undo the harms caused by the overpolicing of marijuana laws.

"There are many people who were charged with for-sale offenses before the passage of Prop 207 even when they had minimal amounts of marijuana," he continued. "The state and the cannabis industry is now making millions on marijuana sales, so it's fortunate that people who were believed to have committed a sales-related offense can now benefit from expungement."

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Maricopa County Superior Court in downtown Phoenix
Tony Webster

Push for more expungements continues

Furuya's ruling stems from a 2014 Maricopa County case, State v. Sorensen, in which a 19-year-old was charged by county prosecutors with the crime of possession of marijuana for sale and the possession of drug paraphernalia.

Officers did not have enough evidence to charge the teen with the actual sale of marijuana and used circumstantial details to claim that he possessed the marijuana in order to sell it.

At the time, the teen was pulled over for his car's taillights not working. When officers searched the vehicle, they found 18 grams of marijuana in a jar and in two small baggies. Officers also found about $1,100 in cash in the vehicle and claimed the teen admitted to selling the drug.

The teen later pled guilty to an amended count of solicitation to commit possession of marijuana for sale, a Class 6 undesignated felony.

Originally, a Maricopa County Superior Court judge declined to expunge the teen's record, even after Maricopa County prosecutors requested the judge do so. But after the decision was appealed, Fuyura wrote in the ruling that Proposition 207's language clearly indicated that possession cases — even when prosecutors believed an individual was dealing the drug — were eligible to be sealed.

The Arizona Prosecuting Attorneys' Advisory Council, a group that represents prosecutors in Arizona, opposed this reading of Proposition 207.

In an amicus brief submitted in State v. Sorensen, APAAC argued that Proposition 207 had "no provisions allowing for the expungement of a conviction based on possessing marijuana 'for sale,'" and, in fact, "possession for sale" remained a crime in Arizona.

The group did not appear to sway the three judges.

Meanwhile, expungements are continuing across Arizona. Prosecutors in some counties, such as Maricopa County, have been proactively filing petitions to expunge people's cases. Elsewhere in the state, prosecutors have not done so or have only done so in a few cases.

Watson said the campaign was doing "everything that we can" to reach people and help them expunge their records. "But look, our position is this. Our county attorneys, people who have been prosecuting people for marijuana possession or possession for sale for the past few decades, they need to take the lead on this," he said.

McDonald noted that his team at the Post-Conviction Clinic will now start filing petitions on behalf of clients, some of whom originally were denied expungement in possession for sale cases. "We're already preparing to file again for them in light of this case," he said. "This is an exciting thing that's happening."
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