Recreational Marijuana and Criminal Records

By:  Kal Issa

With the passing of House Bill 1438, which allows for the legal possession of Cannabis, many individuals who have had criminal records based on the mere possession of certain amounts of marijuana will have the opportunity to have their criminal record wiped clean. That is because the bill will provide those individuals the ability to have their arrests, cases, and convictions expunged, making it as if it never happened at all.

House Bill 1438, known as The Cannabis Regulation and Tax Act, amends the Criminal Identification Act, which addresses the sealing and or expunging of certain criminal offenses. Sealing allows a record to be hidden from public view, while still being accessible to certain entities. Expungement, on the other hand, allows for the complete obliteration of a criminal record, essentially wiping the past away.

The new law allows previous “minor Cannabis offenses” to be completely removed from an individual’s history so long as the arrest, charge or disposition was for a Cannabis related offense involving less than 30 grams. This includes not only mere possession of Cannabis but even Possession with Intent to Deliver, Delivery of Cannabis or Manufacturing Cannabis. However, the prior offense must not be for delivering (or intending to deliver) to a minor nor can the offense have been associated with a violent crime.

In addition, the expungement is automatic if the offense led to an arrest without charging, a dismissal, or a disposition Court Supervision or Qualified Probation so long as more than one year has passed since the arrest and no other charges were filed related to the arrest. There are specific time frames that apply. The further back in time the offense occurred, the longer Illinois State Police has to comply with the provision of the Act.

Additionally, while not automatic, individuals may seek to have Cannabis related offenses involving more than 30 grams expunged (specifically, 30 to 500 grams). However, this route requires the individual to take the affirmative steps in petitioning the Court to vacate the conviction or disposition and grant an Expungement. This route also allows prosecutors the right to object to any petition, which will necessitate the individual to explain to the Court why the request should be granted.

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