Earlier this month (October) President Biden issued an order to issue pardons for all persons convicted of marijuana possession in U.S. Federal Courts. This order does not impact marijuana convictions that occurred in state courts. This blog addresses what this distinction means, and what you can do if you have a marijuana conviction in a state or municipal court in Washington State.
We have a lot of courts in our country. The important word to remember is jurisdiction. The power of a court is determined by its jurisdiction. The jurisdiction for federal courts is determined by Congress. But essentially it means that any crime that occurs on federal land or a federal building will be prosecuted in a federal court. For example if a crime is committed in a National Park, military base, or federal office building, the jurisdiction is a federal court.
For everything else, the jurisdiction falls to a state or local court. In Washington State, there are state courts for each county. The superior court has jurisdiction for felony crimes. The district court has jurisdiction for misdemeanor and gross misdemeanor crimes. Most (but not all) cities maintain their own municipal court. These courts have jurisdiction limited to only misdemeanor and gross misdemeanor crimes that occur within the city limits. If you have a marijuana possession conviction that occurred in a national park, military base, or federal building, or any place where there was federal jurisdiction, your case is likely covered by President Biden's pardon order. But if your case took place in a state (or municipal) court, it is not covered.
If you have a marijuana conviction in superior, district, or municipal court in Washington State, you have the following options to clear the conviction record.
- Were you convicted in superior court, district court, or a municipal court for possession of under 40 grams of marijuana, AND you were over twenty-one at the time of arrest?
Under the Washington State vacate law you can petition the court to vacate the conviction record. Two things differentiate this vacate request from a traditional vacate request. First, you can file the petition even if you have not completed all sentencing conditions, such as payment of legal financial obligations. Second, the court MUST grant the request. The court has no discretion to deny the petition.
- Were you convicted in superior court, district court, or a municipal court for possession of under 40 grams of marijuana, AND you were under twenty-one at the time of arrest?
Under the Washington State vacate law you must file a traditional vacate petition. This means you must show that you have completed all sentence conditions including payment of legal financial obligations, and you must wait at least three years from completing all sentence conditions before you can file your petition. Finally, the court has discretion to deny your request.
- Were you convicted in superior court for possession of over 40 grams of marijuana?
This is a felony. In 2020 the State Supreme Court ruled that the felony drug possession law is unconstitutional (Blake). As a result, ALL felony drug possession convictions are null and void. You can file a petition with the court to have the conviction vacated, and you will be refunded any legal financial obligations you paid to the court. This process applies to any other felony drug possession conviction.
- Were you convicted in superior court of selling, distributing, or manufacturing marijuana?
This is a felony. The Supreme Court Blake ruling does not apply. You must file a traditional vacate petition with the court. You must complete all sentence conditions and receive a Certificate of Discharge. You must also wait a specific minimum time period; either five or ten years, without having any subsequent convictions.
- Were you arrested for marijuana possession, but never prosecuted or convicted?
You can petition the Washington State Patrol to delete the arrest record. This process is simple and does not require a lawyer.
The Governor's office instituted a program to expedite pardons for certain marijuana possession convictions several years ago. You can learn more about this program on the governor's website. Governor.wa.gov/marijuanajustice. However, this program has significant limitations, and as a result it has not been used by many people.
The vacate law is a strong remedy to clear past conviction records. The law gives you the legal right to state you were never convicted of the offense, and law enforcement agencies are prohibited from disclosing any record of the case to the public.
If you have any questions about a marijuana conviction, or any other type of conviction record, we are ready to work for you to clear that record.
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