San Francisco District Attorney Applies Proposition 64 Retroactively to All Marijuana Cases Since 1975

Written By ESR News Blog Editor Thomas Ahearn

The San Francisco District Attorney’s Office has announced the retroactive application of Proposition 64 – a voter initiative passed in November 2016 legalizing the possession and recreational use of marijuana for adults ages 21 years or older – to misdemeanor and felony convictions dating back to 1975.

Under Proposition 64 – also called the “Adult Use of Marijuana Act” (AUMA) – the San Francisco District Attorney’s Office will be reviewing, recalling, and resentencing up to 4,940 felony marijuana convictions, and dismissing and sealing 3,038 misdemeanors which were sentenced prior to the initiative’s passage.

No action is required by those eligible pursuant to Proposition 64. “A criminal conviction can be a barrier to employment, housing, and other benefits, so instead of waiting for the community to take action, we’re taking action for the community,” George Gascón, the District Attorney of San Francisco, stated in a press release.

Individuals who had a conviction for Possession of 28.5 grams or less of Marijuana pursuant to Health and Safety Code (HSC) Section 11357 or Possession of 8 grams or less of Concentrated Cannabis also pursuant to HSC Section 11357 when 21 years or older may have their record of conviction dismissed.

In addition, individuals who had a felony conviction for Possession with Intent to Sell Marijuana (HSC 11359), Sales, Furnishing, or Transportation of Marijuana (HSC 11360), or Cultivation of More than 6 Marijuana Plants (HSC 11358) may have their felony reclassified as a misdemeanor if:

  • They have not suffered a conviction pursuant to Penal Code Section 667(e)(2)(c)(4);
  • They are not required to register as a sex offender pursuant to Penal Code Section 290;
  • They do not have two or more prior convictions under the same Health and Safety Code Sections of 11358, 11359, or 11360;
  • The conviction did not involve the sale or attempted sale to a person under the age of 18;
  • The conviction did not involve a person under the age of 21 in possessing for sale, selling or cultivating marijuana; and,
  • The conviction did not involve the importation or exportation over state lines of more than 28.5 grams of marijuana.

HSC Section 11361.8 creates a presumption that a person applying for a dismissal, resentencing, or redesignation to a misdemeanor has satisfied the criteria for dismissal, resentencing, or redesignation unless the party opposing the application proves otherwise by clear and convincing evidence.

The application may be granted without a hearing. If the person applying for resentencing or dismissal is currently serving their sentence, the court shall grant the petition unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.

While Proposition 64 allows for those convicted of marijuana crimes to petition to have their convictions reduced or wiped away, only 4,885 Californians have petitioned state courts to have their cannabis convictions expunged since the initiative’s passage, according to the Drug Policy Alliance.

Between 1915 and 2016, California law enforcement made 2,756,778 cannabis arrests. The Department of Elections reported that nearly 75% of San Franciscans voted to legalize marijuana, nearly three out of every four San Franciscans voted to provide this relief to those convicted of marijuana offenses.

California is not the only state with laws legalizing marijuana. In February 2018, ESR News reported that a new law in Maine requires employers to stop drug testing job applicants for marijuana use and also preventing employers from firing workers 21 years or older for the use of marijuana outside of work.

“Question 1 – An Act to Legalize Marijuana” reads: A school, employer or landlord may not refuse to enroll or employ or lease to or otherwise penalize a person 21 years of age or older solely for that person’s consuming marijuana outside of the school’s, employer’s or landlord’s property.

With twenty-eight states and the District of Columbia legalizing medical marijuana, employers that drug test face a “conundrum” and are questioning whether or not they should stop testing applicants for marijuana, according to an article from the Society for Human Resource Management (SHRM).

The SHRM article ‘Should Marijuana Be Removed from Pre-Employment Drug Screens?’ explains the problem employers face drug testing for marijuana is that “the drug remains illegal under federal law, and employers have the right to test for it, even in states where the substance is legal.”

However, SHRM reports employers in eight states allowing recreational use of marijuana – Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington – as well as in the District of Columbia are “gradually removing the substance from pre-employment drug testing panels.”

“The national trend towards legalization of marijuana for medicinal and recreational purposes is a critical workplace issue for employers who drug test, especially where state laws conflict with federal law,” says Attorney Lester Rosen, founder and CEO of Employment Screening Resources (ESR).

More Information about Marijuana Drug Testing

Employment Screening Resources (ESR) is a leading global background check firm that offers drug testing solutions to help employers comply with conflicting federal and state marijuana laws. To read more ESR News blogs about marijuana, visit

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