Clearing an old marijuana conviction in California

This page is about old marijuana convictions. It is general information, not legal advice. For current use, see Marijuana is legal in California. Can it hurt my immigration case?

What did Prop 64 do for old convictions?

Prop 64, the voter law that legalized adult use, made many marijuana activities legal for adults or lesser crimes. It also created a way to fix old convictions for conduct that would be legal or less serious today.

Under Health and Safety Code 11361.8:

• If you are still serving a sentence, you can ask the court that convicted you to recall or reduce it.
• If you finished your sentence, you can ask the court to dismiss and seal the conviction, or redesignate it as a misdemeanor or infraction.
• The court must presume you qualify unless the other side proves by clear and convincing evidence that you don't.
• No hearing is needed unless you ask for one.
• It covers juvenile marijuana cases too.

A dismissed and sealed conviction is treated under state law as if it never happened. You can answer most state questions about it that way.

Was my case already cleared automatically?

Maybe. In 2018 California passed AB 1793 (Chapter 993, Statutes of 2018), now Health and Safety Code 11361.9, to do much of this automatically:

• The DOJ had to find eligible convictions in its database by July 1, 2019.
• Prosecutors had until July 1, 2020 to challenge any of them.
• Cases not challenged are treated as recalled, dismissed or redesignated. Courts had to issue the orders and report them to the DOJ by March 1, 2023.
• The DOJ had to update its records by July 1, 2023.

So many people already had their record fixed without doing anything. The DOJ's final progress report (June 3, 2024) counted 227,650 potentially eligible cases in July 2019, and 11,493 still not updated as of April 2, 2024. That is a 95% drop, but thousands were still waiting. Don't assume yours was done. Check.

How to check: request your California record from the DOJ using Live Scan and Form BCIA 8016RR marked "Record Review." The usual DOJ fee is $25 plus the Live Scan site fee. The law lets the DOJ give a one time fee waiver if you are checking a Prop 64 update, and the DOJ also has a general fee waiver for people with low income. Full steps: How to get a copy of your criminal record.

If your record was not updated, you can file your own petition with Form CR-400 in the court that convicted you.

Does Prop 64 relief help my immigration case?

Here is the hard truth. Usually not by itself.

Federal law still lists marijuana as a controlled substance. For immigration, what matters is whether you have a conviction under federal rules. USCIS says:

• A conviction erased because of a legal defect in the original case is not a conviction for immigration.
• A conviction dismissed or expunged for other reasons, like rehabilitation or to avoid immigration problems, still counts.
• An expunged record does not remove the conviction, and you must still get and provide your records, even sealed ones.

Prop 64 relief happens because the law changed later, not because something was wrong in your original case. Immigrant legal experts generally warn that immigration authorities will still treat it as a conviction. USCIS says a conviction vacated or dismissed for reasons that are not a legal defect in the original case, such as rehabilitation or a later change in the law, still counts. The law calls the dismissed conviction "legally invalid," and lawyers may argue about what that means, but you should not count on it. Ask your lawyer.

So: Prop 64 relief is still worth getting for jobs, housing and your own peace of mind. Just don't treat it as an immigration fix.

Can a marijuana conviction hurt me at all if it was small?

It depends on your situation:

• Green card holders: a drug conviction can make you deportable, except a single offense of possessing 30 grams or less of marijuana for your own use.
• Citizenship: a drug conviction can block the good moral character you need, with the same single 30 grams or less exception.
• People applying for a green card or visa: a drug conviction, or admitting to a drug offense, can make you inadmissible. A discretionary waiver, 212(h) (8 U.S.C. 1182(h)), can forgive a single offense of simple possession of 30 grams or less of marijuana. You must meet one of its conditions: extreme hardship to a U.S. citizen or green card holder spouse, parent, son or daughter; the offense being more than 15 years old, with proof of rehabilitation; or being a VAWA self petitioner. The government decides. Ask a lawyer.
• Selling or growing cases: these are more serious. Immigration officials can bar someone they have "reason to believe" was involved in drug trafficking.
• DACA: a felony bars DACA. A misdemeanor for drug distribution or trafficking is also a bar. Simple possession misdemeanors count toward the limit of three. Ask a lawyer whether a redesignation helps you.

What fixes can actually help for immigration?

These work by finding a legal problem in the original case:

• Penal Code 1473.7. If you did not understand the immigration effects when you pleaded, you may be able to vacate the conviction. See How to ask a court to cancel an old conviction under Penal Code 1473.7.
• Penal Code 1016.5. If the judge did not warn you about immigration effects before your plea. See Before you take a plea deal.
• Penal Code 1203.43. If you finished deferred entry of judgment after a guilty plea. See Clearing an old drug diversion plea.
• Older first time possession cases. In the Ninth Circuit, which includes California, an older rule can help some first time simple possession cases from before July 14, 2011. USCIS tells its officers that the date matters for these cases. Ask a lawyer.

For the full list, see Ways to fix an old California conviction for immigration purposes.

What should I do now?

1. Get your record from the DOJ and, if you can, the court file.
2. Write down the charge, the date, the amount if you know it, and your sentence.
3. See an immigration lawyer with those papers before filing for a green card, citizenship or DACA, and before traveling abroad if you have a green card.
4. Ask about Prop 64 relief if your record was not updated. It helps in California life.
5. Ask about 1473.7 or other fixes if you need the conviction gone for immigration.
6. Answer immigration forms truthfully, even about sealed or dismissed cases, with your lawyer's help. The N-400 instructions tell applicants to report all offenses, including expunged ones.

What mistakes should I avoid?

• Thinking "legal now" means "safe now." Federal immigration law did not change with Prop 64.
• Leaving a sealed case off an immigration form. Ask your lawyer how to report it.
• Talking about past marijuana use with an immigration or border officer without advice. An admission can cause a problem on its own.
• Paying a notario. Only an attorney or DOJ accredited representative may give immigration legal advice. See Warning signs of an immigration scam.

Questions people ask

My conviction was dismissed and sealed under Prop 64. Do I still need to tell immigration? Ask your lawyer, but plan on yes. USCIS says applicants must get their records even if sealed.

Does the state tell me if my case was cleared? The law required the DOJ to post information and run an awareness campaign, but it did not promise a personal notice. Request your record to be sure.

I was a teenager when it happened. Does this apply? Prop 64 relief covers juvenile marijuana cases too. A juvenile case is also generally not a conviction for immigration. See Does a juvenile record affect immigration or DACA?

Who can help?

Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

• Community Legal Services in East Palo Alto (CLSEPA): 650-326-6440. Lists record clearance and immigration help for people with low income in San Mateo and Santa Clara counties.
• Santa Clara County Public Defender, Reentry Expungement Program: (408) 535-4290, Reentry Resource Center, 151 W. Mission Street, San Jose. For people who meet its income rules and were not sentenced to state prison.
• State funded immigration legal help anywhere in California: the California Department of Social Services provider map, or call (916) 651-8017.
• More options: Free or low cost immigration legal help in the Bay Area.

Is there a checklist I can print?

Your past does not have to set your future. Get the facts, get good advice, and take the next step.