Around our country, state after state is legalizing the use of recreational marijuana. New York is no different. As of 2021, it has been legal to possess marijuana for recreational use up to a certain amount. While many are happy with this, for those convicted of marijuana-related crimes before this law went into effect, it may seem a bit unfair.
Drug and marijuana offenses are some of the most common things to be found on a criminal record and can have a serious impact on many aspects of your life. Luckily, there is expungement. This legal mechanism can leave you with a clean criminal record if you qualify.
What is expungement?
In New York, expungement puts you in a position as though the conviction never happened. There are several elements that are affected by this.
First, and most obvious: if you have successfully obtained an expungement the original conviction will not show in a criminal background check. Second, the expunged conviction cannot be used against you in the application process for things like student loans, jobs, and housing. Next, except if you are applying to be a police officer or want to get a gun license, law enforcement officers will be unable to find expunged convictions. Finally, if you apply for school or a job you can truthfully and legally answer that you have not been convicted or arrested for an offense (assuming that was your only conviction).
Who qualifies for an expungement?
There are different types of expungements to consider in New York. First, there is automatic expungement. Based on the crime that a person was convicted of, certain individuals are entitled to have their charge expunged and do not need to do anything to make that happen. Charges eligible for automatic expungement are:
- Unlawful possession of marijuana in the second or first degree
- Criminal possession of marijuana in the fourth or third degree
- Criminal sale of marijuana in the fifth degree
- Restrictions on cannabis use
- Personal cultivation and home possession of cannabis
- Unlawful possession of cannabis
- Unlawful sale of cannabis
If a person has a conviction for one of these offenses, the court will automatically take care of expunging it. Unfortunately, no notice will be given to those people who have charges expunged. While the required legal authorities will get notice, if you find yourself in the position of having your case expunged, the only real way to know if your case has truly been expunged is to speak with a court clerk or have a lawyer do that for you.
Figuring out if you are the recipient of an automatic expungement is difficult because even if the expungement has not gone through, all cases of the above-listed types are suppressed.
Suppose that you have a marijuana-related offense, but it does not fall under any of those charges listed. You are not out of luck. Because of the law change, while there are still many offenses that are going to land a person in hot water, in many cases, those charges would be reduced to lesser charges or degrees.
Similar to people who committed acts that are no longer criminalized today, it would be unfair for people convicted of a high-level offense to permanently suffer the consequences for something that would be less damaging today. For those in this situation, there is hope. Under New York law, people can petition to have their charges vacated, lessened, or dismissed, or they reduce their sentence.
If a person petitions to vacate the conviction, it is as though they have not pleaded guilty or been found guilty. There are still criminal charges pending that this person would have to answer for but a significantly better outcome is possible. People who seek to have their charges reduced are going to maintain their guilt but will be guilty of a lesser charge. People who seek to have their charges dismissed would be in the process of fighting a criminal charge and would ask that it be thrown out as the conduct for which they have been charged is no longer criminal. Finally, if you are already guilty of the offense, oftentimes, a judge may use the amount of marijuana in determining the sentence. Because the law has changed higher weights warrant less severe sentences. Therefore, a judge should be willing to re-sentence a person to a less severe sentence.
How to get an expungement?
If you or someone you know is asking if they are entitled to an expungement, hopefully, this article has given you some answers. One of the major takeaways is that the process of getting or even figuring out if you are eligible for an expungement is difficult. Luckily, lawyers who focus on helping people navigate this tricky landscape like Michael Arbeit can help you determine if an expungement is something you are entitled to and, if so, help you get it.
As a practitioner of criminal defense, Michael understands the various charges related to marijuana. An absolute pre-requisite, this knowledge helps to craft a petition that contains the required information to get expungements. Contact our office today to schedule a free consultation.