Bill to Double Marijuana Possession Amount, Clear Records Awaits Senate

House Bill 1090 would raise the state marijuana possession limit from 1 ounce to 2 ounces.
House Bill 1090 would raise the state marijuana possession limit from 1 ounce to 2 ounces.
A bill that would double the amount of recreational marijuana that it's legal to possess and also clear more low-level pot offenses is making its way through the Colorado Legislature, where it's now awaiting a Senate committee hearing after passing the House of Representatives.

Introduced by Representative Alex Valdez, a Democrat from Denver, House Bill 1090 would raise the possession limit from 1 ounce to 2 ounces, as well as give former offenders of low-level possession and cultivation felonies more opportunity to clear their records.

The proposal passed the House 45 to 19, and Valdez is confident of its chances in the other chamber, where  Senator Julie Gonzalez will be leading the charge. "It should come up fairly quickly, given the fact that it was pretty free of controversy," Valdez says. "I think marijuana issues are generally starting to be non-partisan, but we got some of the more conservative folks to vote for it, too, which really shows."

The proposal also calls for a Class 3 marijuana cultivation felony conviction — growing more than twelve plants but fewer than 25 — to be sealed, though growing more than twelve plants would remain illegal for anyone without a medical marijuana card and extended plant count. The increase in possession amount wouldn't affect Colorado's daily dispensary purchasing limit of 1 ounce, either, as that would require a regulatory change by the state Marijuana Enforcement Division.

Valdez had previously hoped to automate the record-clearing process, but he worried that the fiscal impact would be too high. He now believes a program in which former offenders petition judges is more likely — though approval from district attorneys, a common stipulation in record-clearing for other crimes, would not be required as the measure is currently written. The bill was also amended to disqualify former marijuana offenders with other convictions on their record; those "will be looked at on their own merit" by judges.

"It allows them to petition directly to a judge instead of getting the district attorney's sign-off," Valdez explains. "It gets very legal-eagle, because district attorneys obviously want to preserve their ability to have checks there."

Unlike Governor Jared Polis's executive order issued in October that automatically cleared state convictions for marijuana possession of 1 ounce or less, this proposal would apply to local convictions, which vastly outnumber the 2,732 state convictions pardoned by Polis. Although the governor was given the power to pardon convictions for up to 2 ounces by a 2020 state law, he chose to stick with 1, citing the state's current adult-use possession limit.

Raising the level to 2 ounces would result in a much larger pool of convictions to clear, and that could be a challenge if HB 1090 doesn't automate the process, according to marijuana attorney Sean McAllister.

Before he began representing licensed pot businesses, McAllister defended arrested medical marijuana patients; he currently serves as executive officer of the City of Denver's Psilocybin Mushroom Policy Review Panel. Based on his experiences, McAllister says that any record-clearing process that isn't automated and sets a relatively low possession limit won't reach many people.

"Unless it has an automatic sealing provision, it's not going to have much of an impact, but that really does cost the state money. If that's the expense it costs for this failed immoral drug war, they should still do it, but that tends to be the deal-killer," McAllister explains. Still, he adds, "any liberation of the possession laws or extension of the record-sealing laws is certainly progress."

Looking up old marijuana crimes can be especially challenging if the arresting jurisdiction doesn't participate in the Colorado Crime Information Center, which operates a statewide database of criminal records, McAllister notes.

Many of the marijuana possession arrests that McAllister saw before recreational legalization were for either small personal amounts or bulk amounts likely intended for distribution, making the 2-ounce limit ineffective, he says.

"Most people have quarter-ounce bags and half-ounces, or pounds of it, not between an ounce and 2 ounces," he explains. "My personal opinion is there shouldn't be any possession limit for adults unless they have an intent to distribute."

HB 1090 is currently slated to go before the Senate Judiciary Committee on April 22.