Expungement of Marijuana Offenses

Illinois has recently enacted one of the most far-reaching cannabis legalization laws of any state in the country. The law will become effective January 1, 2020, contains provisions for the expungement of cannabis-related offenses.

Over the past decades, hundreds of thousands of Illinois residents (and non-residents) have been arrested for cannabis-related offenses and, as a result, have arrest records that have affected their lives by negatively impacting their ability to gain admission to educational institutions, ability to obtain employment, secure professional licensing and in a variety of other ways. Recognizing the harm that these offenses have had on the lives of offenders, the legislature has included expungement provisions in the new legislation to wipe away the criminal records of persons for offenses occurring prior to the effective date of the new law.

The law provides for expungement by 2 different methods (1) automatic expungement which does not require any action on the part of the offender; and (2) expungement that can only be granted by a petition to the court filed by the offender or his or her attorney.

Automatic Expungement

An automatic expungement will be available only in cases involving the possession, manufacture and/or distribution of 30 grams or less of cannabis. Additionally, to be eligible for automatic expungement, the offense must not have included a penalty enhancement due to delivery to a minor (less than age 18) who was at least 3 years younger than the offender. Furthermore, if the offense involved an arrest, conviction or other disposition for certain violent crimes, the offender will not be eligible for automatic expungement. These offenses include violent sexual offenses, sexual offenses involving a minor, stalking, animal abuse, and any offense which requires the person to register as a sex offender.

How Does Automatic Expungement Work?

(1) If more than 1 year has passed since the incident and the person was not charged (but a record was created due to police contact) or the charge was dismissed or an acquittal was entered, then the law enforcement agency is required to expunge the record; or

(2) If a conviction was entered, the Illinois State Police is required to identify all qualifying records and notify the Illinois Prisoner Review Board (“Board”). If the offense is a Class 4 felony, the Board will also notify the State’s Attorney in the county where the offense occurred, who may then file an objection to the expungement with the Board stating that the offense does not qualify for expungement. If an objection is filed, the Board will set a non-public hearing to determine whether the offense still qualifies for expungement.

Following receipt of all qualifying records from the Illinois State Police, together with the results of any hearings held on Class 4 offenses, which the State’s Attorney has filed objections to, the Board will file recommendations to the Governor as to whether expungement should be granted. If granted by the Governor, the Attorney General’s office will file a petition for expungement with the court where the offense was originally heard. The court will then enter the order granting the expungement.

Petition for Expungement

The fact that a person does not qualify for automatic expungement (due to the fact that the offense involves the possession, manufacture and/or distribution of more than 30 grams of cannabis) does not mean that the person cannot obtain an expungement. However, in order to obtain an expungement in such cases, the offender will have to file a petition with the court. In order to be eligible to file a non-automatic petition for expungement, the offense the person was convicted of must either be a misdemeanor or Class 4 felony.

This means that a person convicted of a Class A misdemeanor possession of cannabis (31-100 grams) offense or Class 4 felony possession of cannabis (101-500 grams) offense may file a petition to expunge with the court.

Note that since any offense involving the manufacture/delivery of cannabis of more than 30 grams would be greater than a Class 4 felony, and therefore, is not eligible for automatic expungement or a petition for expungement. However, the offense may still be sealed if other eligibility requirements are met.