Cannabis Expungement

Illinois Legalized Cannabis! What does that mean for your past cannabis arrests or convictions?

On July 26, 2019, Governor Pritzker signed the Cannabis Regulation & Tax Act into law under Public Act 101-0027, making Illinois the ninth state to legalize recreational use of cannabis, and only the second to do it through legislation. Possessing cannabis today is still against the law, but come January 1, 2020, it will be legal (up to certain amounts) and sold at licensed dispensaries.

Not only will Illinois no longer criminalize people for possessing or using cannabis, the State also created new opportunities for people to overcome their past marijuana arrests and convictions.   The new law specifically creates “categories” of cannabis expungement. The first step to taking advantage of the new rules is to determine the category of your cases. Some people’s cases will fall into the automatic expungement categories, but others will need to file a petition in court to expunge their record. 

  • Category 1:  Automatic.  Arrests for misdemeanor and some Class 4 felony offenses that are classified as“minor cannabis offenses,” which did not result in a conviction and did not include a penalty enhancement or arrest for violent crime in the same incident. Note, this means that not all arrests for Class 4 felony cannabis offenses will qualify.  Those arrests that do qualify will be automatically expunged by the arresting agency and the Illinois State Police. When these expungements will happen is based on a time-table in the new law. 
  • Category 2:  Maybe Automatic.  Misdemeanor and Class 4 felony convictions for a  “minor cannabis offenses.” Over the next six months, the Illinois State Police will be identifying and forwarding these cases to the Illinois Prisoner Review Board (PRB) for pardon review.  As part of the review, the PRB will notify the State’s Attorney in the county where the conviction occurred. The State’s Attorney will have the opportunity to file an objection to expungement of Class 4 felony convictions, and then the PRB will then recommend to the Governor whether or not to grant a pardon.  IF the Governor grants the pardon, the Attorney General’s Office is notified and will file a petition to expunge.   
  • Category 3: Not Automatic.  Misdemeanor and Class 4 felony convictions under Sections 4 or 5 of the Cannabis Control Act.  People with these convictions are now allowed to file a petition to vacate and expunge their conviction (which used to only be eligible to be sealed).  These expungements are not automatic or guaranteed- the State’s Attorney can object to the expungement, and it’s up to the judge whether to grant the request. 

So how do you know what you might qualify for? The first step to figuring out expungement and sealing options is that you have to know what’s on your record. Sometimes this can be harder than people think because it often requires reviewing multiple records to determine two things: 1. the specific TYPE of cannabis case, and 2. the final OUTCOME of the cannabis case.  

Remember, at the end of the day, all cannabis convictions – no matter what type – are eligible for sealing under Illinois law after three years from your last sentence.  If your conviction is for a Class 3 felony or above, or an ordinance violation, filing a petition to seal through the existing process might be your best option. 

Relief is likely available, you just have to know the right path to follow!

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