High Times in San Francisco: DA Promises To Expunge Cannabis Convictions Without Petitions

During the November 8, 2016 statewide general election, California voters enacted the Control, Regulate, and Tax Adult Use of Marijuana Act (AUMA). The AUMA authorizes licensed sellers to sell recreational use marijuana, or cannabis, per certain requirements and limitations. State authorities began issuing licenses to sell recreational use marijuana on January 1, 2018, and Californians over 21 years of age have been able to lawfully purchase recreational cannabis in California since that date. 

The AUMA also includes a resentencing provision which permits persons previously convicted of certain, designated, cannabis offenses to obtain a reduced conviction or sentence if they would have received the benefits of the AUMA had it existed when the crime was committed. If the act would now be legal under the AUMA, Californians may petition the court expunge their low-level cannabis crime or reclassify a qualifying felony as a misdemeanor. Californians seeking relief must file a petition, pass an eligibility screening, and attend a hearing during which the court will consider the merits and rule on the petition. 

On January 31, 2018, San Francisco District Attorney George Gascón took this one step further, pledging to retroactively apply the AUMA to convictions dating back to 1975 and reduce criminal penalties for eligible San Franciscans without requiring them to petition the court for relief. Gascón’s statement specifically cited racial disparities cannabis arrests and convictions as well as the low number of Californians who have petitioned the court for relief as the reasoning behind the District Attorney’s policy to expunge or reduce applicable sentences without requiring a petition. The San Francisco district attorney’s Deputy Chief of Staff and Spokesperson Alex Bastian echoed Gascón’s statement, noting that a San Franciscan’s ability to avail themselves of this relief should not be dependent of their ability to hire an attorney. The district attorney’s office has not yet committed to a timeframe to complete the intended action.   

These proposed mass dismissal or reduction of convicions may remove from consideration certain San Francisco County convictions that employers have otherwise been entitled to consider when conducting a background check on a job candidate. Existing state and local laws already regulate the use of criminal histories. Since August 2014, San Francisco’s Fair Chance Ordinance (FCO) has prohibited employers from conducting a background check until a conditional offer of employment has been made, and California recently enacted these protections statewide. The California Labor Code also already prohibits employers from considering low-level cannabis convictions that are more than two years old, as well as convictions that have been judicially sealed, dismissed, or expunged. To the extent that applicable cannabis convictions appear on a background check report, employers should be aware that the FCO currently prohibits employers from considering convictions that have been judicially expunged per the AUMA. 

The AUMA and the district attorney’s promised action do not, however, affect an employer’s right to conduct and act on otherwise appropriate drug tests. Because cannabis is still illegal under federal law, employers may withdraw a job offer or discipline current employees based on failing an otherwise appropriate drug test.