Dismissing (or "Sealing") a Federal Record for Drug Possession

Defendants who possessed small amounts of drugs may be able to have their convictions dismissed.

By , Attorney

Federal judges in some federal circuits have the inherent power to expunge any record, as explained in Sealing a Federal Adult Criminal Record. But even in circuits that recognize this power, it's rare that a judge will exercise it. Fortunately, however, if you were convicted of possession of a small amount of certain drugs, you may qualify for the next best thing—dismissal of the case—pursuant to a statute that sets out the qualifications and the procedures. (18 U.S.C.A. Section 3607.) A dismissal is not the same as an expungement, but (as explained below) it gives you the power to deny that you have a conviction.

Juveniles who were charged with possession of small amounts of drugs may also qualify for dismissal of their records.

Who Qualifies for Dismissing a Drug Possession Conviction?

This opportunity applies only to convictions for simple illegal possession of certain drugs that meet these requirements:

First offender. This was your first offense for violating any state or federal law concerning controlled substances; and you have not utilized this record-sealing remedy before.

Certain drugs. The conviction was for drugs and chemical compounds that include, among others, marijuana, cocaine and cocaine-based drugs, heroin, and methamphetamines.

Circumstances of your illegal possession. The drugs were illegally possessed by you, but were not given to you by a licensed physician in the course of his or her professional practice, nor did you get them with a phony prescription.

Amount. You had "simple possession" of the drugs, which means in this context that you did not have large amounts for sale.

Getting Your Conviction Dismissed

If you were 21 years old or older on the date of your federal drug possession conviction, you are eligible to have the case dismissed if you meet the following criteria:

  • you were found guilty, but the judge suspended entry of the judgment of conviction (it wasn't entered into the record as a conviction)
  • you were placed on probation for up to one year and you completed probation successfully
  • at the end of your probation, you were brought back to court and the case against you was dismissed, and
  • this was the first time you underwent this series of events.

If this chain of events describes what happened to you, you do not have to take any steps to dismiss your record—the judge should have done it already, by filing a document called a "Discharge and Dismissal." If this didn't happen, you'll need to take steps, and will probably need the help of a lawyer.

The Benefits of a "Discharge and Dismissal"

Once this document is filed, the records of your case should have become a "non-public record." This means that the Department of Justice will keep the record of your case only for the purpose of making sure that you cannot benefit from a dismissal of this type again.

A dismissal of this nature means that the conviction cannot be considered as such for the purpose of enhancing a future sentence. In most situations, you can deny that you have a conviction for the offense. But keep in mind that this dismissal is not the same as an expungement. Only an expungement can literally erase a conviction.

Getting Legal Help

If you are not sure whether your conviction qualifies for a dismissal, or whether the judge entered the dismissal, you may need the help of an experienced criminal defense lawyer who regularly practices in the federal court that heard your case.

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