Expunging your marijuana conviction under Illinois’ new Cannabis Regulation and Tax Act

On May 31, Illinois House Bill 1438, better known as the Cannabis Regulation and Tax Act, passed the Illinois House of Representatives by a vote of 66-47. The Act now awaits the signature of Governor J.B. Pritzker – a vocal supporter of the bill – prior to making Illinois the 11thstate in the United States to legalize marijuana for recreational purposes. Once the Act is signed, the sale, possession, production (through the licensure system) and recreational use of marijuana by persons 21 years or older will become legal in Illinois, effective January 1, 2020.

In addition to ending the prohibition on marijuana usage in Illinois, the Act also includes sweeping social justice provisions focused on expunging the criminal records of those arrested and/or convicted of non-violent marijuana related offenses. Whether or not an individual is eligible for expungement under the Act, or required to take action in order to have their record expunged, is largely dependent upon the type of crime they were originally arrested for and the date of that offense.

Can My Marijuana Conviction be Expunged?

The short answer to this question is (in most cases), yes.

However, while the Cannabis Regulation and Tax Act’s expungement provisions are expected to impact roughly 770,000 Illinois residents, not all offenses are eligible for expungement. Additionally, under the Act, certain offenses may be subject to automatic expungement while others may require individuals to petition the court in order to be considered for expungement.

Automatic Expungement

The Act mandates the review and automatic expungement (by local state’s attorneys, the state Prison Review Board and Governor’s office) of all “minor cannabis offenses,” so long as at least one calendar year has passed since the date of arrest and no subsequent criminal charges were filed related to the arrest.

The Act defines a “minor cannabis offense” as:

“a violation of Section 4 or 5 of the Cannabis Control Act concerning not more than 30 grams of any substance containing cannabis, provided the violation did not include a penalty enhancement under Section 7 of the Cannabis Control Act and is not associated with an arrest, conviction or other disposition for a violent crime as defined in subsection (c) of Section 3 of the Rights of Crime Victims and Witnesses Act.”

Under this definition, a majority of non-violent offenses related to the possession, manufacture and distribution of less than 30 grams of marijuana will be eligible for automatic expungement.

The automatic expungement mandate does NOT apply to marijuana related arrests and convictions associated with arrests and/or convictions for:

  • Violent sexual offenses
  • Sexual offenses against a minor
  • Stalking offenses
  • Any offense resulting in a court order to register as a Sex Offender
  • Animal abuse offenses
  • Violations of local ordinances

The Act also provides a schedule (and deadlines) for law enforcement agencies to automatically expunge qualifying offenses and records based upon the initial date of arrest.

  • Records created prior to the effective date of the Act (January 1, 2020), but on or after January 1, 2013, shall be automatically expunged prior to January 1, 2020
  • Records created prior to January 1, 2013, but on or after January 1, 2020, shall be automatically expunged prior to January 1, 2023
  • Records created prior to January 1, 2000 shall be automatically expunged prior to January 1, 2025

All qualifying offenses are required to be automatically expunged no later than January 1, 2025, five years from the effective date of the Act.

Individuals with qualifying offenses and records are not required to take any action to have their records automatically expunged.

Expungement by Petition

All individuals with records of marijuana offenses related to possession of between 30 and 500 grams of cannabis (misdemeanors or Class 4 felony violations of Sections 4 or 5 of the Cannabis Control Act), while ineligible for automatic expungement, are provided the opportunity to petition the circuit court for expungement (and a vacated conviction) under the Act. Unlike records eligible for automatic expungement, these petitions are not guaranteed to result in expungement (or a vacated conviction), but do create the opportunity for such a result, which did not exist prior to the Act.

This process, as detailed by the Act, allows qualified “petitioners” (individuals seeking expungement) to petition the circuit court for expungement following “the completion of any sentence or condition imposed by the conviction.” This includes all instances of:

  • Acquittal, dismissal or release without charges
  • Vacated or reversed convictions
  • Successfully completed of orders of supervision
  • Successfully completed probation

The Act provides time frames (designated waiting periods) for filing a petition to expunge for each categories of petitioner:

  • For arrests resulting in acquittal, dismissal, release without charges, a vacated conviction or reversal, there is no waiting period to petition for expungement of those records
  • For arrests resulting in an order of supervision for any offenses not specifically outlined by the Act, petitioners must wait 2 years following the satisfactory termination of supervision to petition for expungement of those records
  • For arrests related to the listed violations of the Illinois Vehicle and Criminal Codes (Section 3-707, 3-708, 3-710, or 5-401.3 of the Illinois Vehicle Code, Section 11-1.50, 12-3.2, 12-15 of the Criminal Code of 1961 or 2012), petitioners must wait 5 years from the satisfactory termination of supervision to petition for expungement of those records.
  • For arrests resulting in an order of qualified probation, petitioners must wait 5 years following the satisfactory termination of probation to petition for expungement of those records

Because these petitions are not guaranteed to result in expungement, the court will take into account the reasons for law enforcement to maintain a petitioner’s records; the petitioner’s age; their age at the time of the offense; the time since conviction; and, the adverse consequences the petitioner would suffer if their petition was denied, prior to making a decision regarding expungement.

The Act also allows the state’s attorney offices of any Illinois country to file motions to expunge records on behalf of any convicted individual whose conviction the office has jurisdiction over.

Questions About Expungement?

For individuals seeking expungement under the Cannabis Regulation and Tax Act, we highly recommend contacting an attorney to discuss your options and eligibility. If you are in need of an attorney for assistance with expungement of marijuana-related offenses or any other criminal defense, post-conviction, or appeals issues, please call Nate Nieman at (309) 623-4831 or email nate@niemanlaw.com to schedule a consultation at one of our convenient locations in the Quad Cities, Chicago, or Des Moines.

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