I have a California marijuana conviction on my record. Should I pursue expungement under Penal Code 1203.4 or dismissal under Proposition 64?

Posted by Neil Shouse | Dec 19, 2016 | 0 Comments

Recently we have written about the possibility of getting resentenced or having your marijuana conviction dismissed and sealed under Proposition 64--California's recreational marijuana law. 

Briefly, Proposition 64 provides that certain marijuana-related activities are no longer crimes--or are less serious crimes than they were before that law was passed. If you were sentenced under the old law, you can have your sentence reduced, or your felony conviction reduced to a misdemeanor. Or, if your offense is no longer a crime at all, you can have the conviction dismissed.

But expungement for certain kinds of offenses was already an option before Proposition 64. California's expungement law, Penal Code 1203.4 PC, provides for expungement of criminal convictions for defendants in certain situations.

Eligibility for Prop 64 relief vs. PC 1203.4 expungement

For a defendant with a marijuana conviction trying to decide which form of expungement to pursue, the first question is of course which you are eligible for.

In order to have a marijuana conviction totally expunged under Prop 64 (as opposed to merely reduced/redesignated from a felony to a misdemeanor), you need to have been convicted of an offense that is no longer a crime under marijuana legalization. The major offenses of which this is true are:

 For you to be eligible for a Penal Code 1203.4 PC general expungement, all of the following must be true:

  1. You successfully completed probation for your offense;
  2. You did not serve time in state prison; and
  3. You are not currently charged with, on probation for or serving a sentence for a criminal offense.

 Benefits of a Prop 64 expungement vs. benefits of a PC 1203.4 expungement

The other consideration is what your specific goals are for the expungement--and which form is most likely to help you meet those goals.

A PC 1203.4 expungement offers several key benefits--most prominently the right to not have the conviction held against you when you are applying for most jobs.

But there are also serious limitations to what a California criminal expungement can do for you. Importantly, it will not seal your record. Anyone who does a background check will still be able to see that you suffered a conviction (though they will also see that the conviction was dismissed). 

In contrast, Proposition 64, in new Health and Safety Code 11361.8 HS, provides that a marijuana conviction dismissed under that section will be "sealed" as legally invalid. This means that the arrest and conviction will not come up when someone does a background check and will not be discoverable through other means. 

For this reason, many defendants who are eligible for a dismissal of their sentence under Proposition 64 are likely to find that to be a preferable option to expungement under PC 1203.4.

That said, it is best to speak directly with a criminal defense and expungement attorney who can help you evaluate your individual situation and options. 

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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