Despite legalization of marijuana in Nevada as of July 1, 2017, many individuals with a conviction for possessing now-legal amounts of marijuana still face problems with employment, credit, and housing because of their existing record. A new law passed in 2019 — referred to as the Nevada Second Chance Act — now enables those persons to have their marijuana conviction record sealed through a relatively simple (and free) process.
Under the new statutory provision, a conviction for any decriminalized offense qualifies for sealing using the simplified process. A decriminalized offense is one no longer punishable as a crime due to legislative enactment or passage of a referendum petition or initiative petition under Article 19 of the Nevada Constitution. However, the law specifically does not apply to traffic offenses under state and local laws and ordinances.
The most notable convictions covered by the statute are those for possession of amounts of marijuana now legal in Nevada. In 2017, the state legalized purchase and possession of up to one (1) ounce of marijuana or one-eighth (1/8) ounce of edibles or concentrates. If you have a conviction for an amount that was decriminalized, your record is eligible for sealing through the request process established in the Second Chance Act.
The new law is retroactive. It applies to any offense decriminalized before, on and after July 1, 2019.
The Second Chance Act establishes a streamlined process for sealing eligible records, including marijuana convictions that qualify. To initiate the request, the person submits a written request to the court in which the conviction occurred. The statute prohibits courts and criminal justice agencies from charging a fee to file the request.
On receipt of the request, and “as soon as practicable,” the court sends written notice to the office of the prosecuting attorney that prosecuted the offense. If the prosecuting attorney’s office does not file a written objection, the court must grant the request.
The office of the prosecuting attorney may object to the granting of the request by filing a written objection with the court within ten (10) judicial days after receiving the notice from the court. If the prosecutor’s office files an objection, the court must hold a hearing on the request.
At the hearing, the prosecuting attorney must establish “by clear and convincing evidence, that there is good cause not to grant the request.” The court’s decision on granting or denying the request is not subject to appeal.
When the record of a conviction is sealed, all proceedings in the record (including the arrest and conviction) are considered never to have occurred. The person whose record is sealed may respond to any inquiry accordingly when completing applications, including those relating to employment, credit, and housing.
Other benefits of sealing a criminal record include restoration of the right to vote, hold office, and serve on a jury. Sealing a record does not restore the right to own or possess firearms, unless a person receives a pardon specifically addressing those rights.
Even if your conviction does not qualify for sealing under the new statute, it may qualify under the Nevada law that provides a general process for sealing criminal records. This procedure is more complex. It is not available for all types of criminal convictions. Our blog post, When Can You Get Your Las Vegas Criminal Record Sealed?, provides additional information.
On October 1, 2017, Nevada significantly shortened most of the waiting periods that apply to sealing a record. If you have not looked into the sealing process under the new provisions, you should discuss your situation with an attorney to see if your conviction now qualifies. Our article, Now It’s Easier to Seal a Criminal Record in Las Vegas: New Nevada Law Shortens Waiting Periods & More, discusses the changes in detail.
A criminal record can adversely affect your life in many different ways. It can limit your employment and housing opportunities, as well as your ability to get credit and financial aid. If you have a record that may be eligible for sealing, you should initiate the process at the earliest opportunity.
The record sealing process is complex if a conviction does not qualify for the new procedure under the Second Chance Law. You will have your best chance of successfully sealing your record if an experienced attorney assists you with the process.
Criminal defense attorney Joseph Gersten represents Las Vegas residents and visitors in all types of criminal charges in state and federal courts. He also has extensive experience getting criminal records sealed. If you would like to explore your options or have questions regarding sealing Nevada criminal records in Las Vegas or elsewhere in Clark County, contact Attorney Gersten to schedule a free consultation.