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Coloradans convicted of marijuana possession could easily get their record sealed under new bill

House Bill 1090 also raises the legal limit for recreational marijuana possession up to two ounces, opening up the possibility of additional pardons from Gov. Jared Polis

Cannabis plants grow inside a cultivation facility near Lafayette on Dec. 13, 2018. (Andy Colwell, Special to The Colorado Sun)
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Colorado lawmakers are on track to give more people convicted of marijuana possession offenses the opportunity to easily seal their criminal record, by requiring courts to seal convictions for possession up to two ounces for people who haven’t committed a crime since. 

House Bill 1090 would also expand Colorado’s recreational marijuana possession limit to two ounces up from one, opening an avenue for Gov. Jared Polis to issue pardons to people previously convicted of a cannabis-possession offense in that range.

Since the 2012 passage of Amendment 64, which legalized recreational marijuana, Colorado has taken a number of steps to address the consequences of its historic marijuana laws, which disproportionately affected Black and other people of color. But for some, pot-related convictions can still be a barrier to getting a job, renting a home or maintaining parental rights after a divorce.

House Bill 1090 aims to close those gaps. 

“We’re really looking for folks who had kind of a one-time hiccup …. allowing those folks to get on with life,” said Rep. Alex Valdez, a prime sponsor of the legislation along with a fellow Denver Democrat, state Sen. Julie Gonzales.

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Michael Diaz Rivera was pulled over and charged with felony possession at age 19 for less than an ounce of marijuana, and was also charged with intent to distribute because he had more than one strain of marijuana stored in separate bags.

“I paid my debt to society, paid my restitution, completed my jail sentence and eventually probation. Unfortunately, the felony still follows me to this day,” Diaz Rivera, who is now a fifth grade teacher, testified at a March 9 House Judiciary Committee hearing. 

He said he has since been turned away from housing and job opportunities because of the possession charge. 

“I have always been honest about my record, and I’ve always been able to show the work that I’ve done in the community to show that I am much more than my felony,” Diaz Rivera said. “Unfortunately…policies made it so that I’ve been turned down for several life opportunities.”

Currently, people convicted of possessing between one and two ounces of marijuana have to file a petition with the court to try to have their records sealed, which can require notifying the district attorney that charged them and additional court hearings. 

House Bill 1090, which eliminates marijuana possession up to two ounces as a criminal offense, would expedite that process by requiring the court to seal convictions, without the opportunity for a DA to object, so long as people meet all the criteria. 

Gov. Jared Polis delivers his State of the State address in front of the House of Representatives at the Colorado Capitol Building on Wednesday, February 17, 2021. (Pool photo by AAron Ontiveroz/The Denver Post)

The bill only applies to people who haven’t been convicted of another crime since they were released from jail or supervision, or after the criminal process related to their conviction has ended.

The bill will eliminate bureaucratic and legal barriers that can cause significant time delays, by allowing people to simply file a petition and have it approved by the court, said Jason Adelstone, an attorney with the firm Vicente Sederberg who provides pro bono legal assistance for people looking to seal drug convictions. 

The delays can be weeks to months, said Adelstone, citing records delays for a client whose possession conviction was in the 1990s. 

“I’m currently waiting for over four months to receive a client’s conviction records because their conviction was for under two ounces,” Adelstone testified at the House Judiciary committee hearing. “(This) will not solve all the delays, but will have a massive impact on the state’s ability to provide timely expungement … to those most in need.”

If a person had other convictions tied to the same arrest, or subsequent criminal charges, they would still be required to go through a conventional petition process, said Valdez. 

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The legislation also makes people with a Class 3 felony marijuana cultivation conviction — meaning they cultivated 30 or more plants — eligible to petition for their record to be sealed. The measure doesn’t offer a fast-tracked sealing process like it does for possession convictions, but currently those with a cultivation conviction can’t have their record sealed at all. 

Nonpartisan legislative staff identified 32 cultivation court cases in the past two decades that would be eligible for sealing under the bill, according to a nonpartisan fiscal analysis

The bill is one step toward remedying the longstanding impacts of marijuana prohibition on communities of color, said Valdez. 

“These sorts of crimes are often charged as accessory offenses, and more often than not, disproportionately impacted communities of color,” Valdez said. “This helps us to right some of the social wrongs that were done prior to legalization.”

The legislation also opens up an avenue for Gov. Polis to issue further pardons. 

In October, Polis pardoned more than 2,700 people with convictions for possessing up to 1 ounce of marijuana. The governor did so under House Bill 1424, which passed during the 2020 legislative session. 

That bill granted the governor authority to pardon people with simple marijuana-possession offenses of up to 2 ounces without going through the normal, arduous pardon process. Because Amendment 64 allows for possession of marijuana up to one ounce, Polis opted to pardon people whose convictions fell only within that legal limit. 

Polis won’t consider pardons for possession convictions between one and two ounces until those quantities are made legal, said Shelby Wieman, a spokesperson for the governor.

“It’s not fair for people today to suffer for doing something that is now legal. The governor will thoughtfully consider the final legislation if it makes it to his desk before determining whether he will consider additional pardons,” Wieman wrote in an email. 

Automated fans and cultivation lights are pictured operating above cannabis plants at RiNo Supply’s cultivation facility near Lafayette on Thursday, Dec. 13, 2018. (Andy Colwell, Special to The Colorado Sun)

It’s not clear how many people in Colorado would be eligible to have their records sealed. Valdez said he originally sought to make the sealing of possession convictions automatic, but the cost to identify and track down all the people who would be eligible was prohibitive. 

Between fiscal years 2017-18 and 2019-20, 80 people were convicted of possessing up to two ounces of marijuana, according to a fiscal analysis by nonpartisan legislative staff. 

The increase in work for courts is expected to be “minimal,” according to the fiscal analysis. 

The Colorado District Attorneys’ Council is not taking a position on the bill. 

House Bill 1090 has passed the Colorado House and is working its way through the Senate. It is scheduled for a hearing in the Senate Judiciary Committee on April 22. 


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