March 13, 2019

Bill to allow petitions to judges to expunge criminal records clears Senate

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Laura Paskus

Committing a crime might be easy enough. Getting a criminal record expunged in New Mexico is more difficult than almost anywhere in the West.

Now that is close to changing. The New Mexico Senate on Wednesday voted 28-13 for a bill clearing the way for both the wrongly accused — and those who committed certain crimes — to petition a court for expunction of those records.

The proposal, House Bill 370, probably would be most important to people convicted of drug offenses or lower-level property crimes.

But even they would have no guarantees. They would have to serve all their prison time, successfully complete their parole, then wait a prescribed number of years before they even could apply.

After that, a judge could still deny their request.

Convicted criminals in an array of cases would not be eligible to try to expunge their record.

Excluded are those convicted of crimes causing death or great bodily harm; those who committed sex crimes or crimes against children; drunken drivers and embezzlers.

Still, Sen. Craig Brandt, R-Rio Rancho, said he voted against the bill on grounds that someone convicted of first-degree felonies, such as two armed robberies, could still try to expunge his record.

Brandt said this was particularly offensive to him because of all the emphasis on gun crimes during this legislative session.

Paul Haidle, an attorney and senior policy strategist for the ACLU of New Mexico, said in an interview the odds of an armed robber qualifying to erase his criminal history would be minuscule.

Haidle, who supports the bill, said the robber first would have to have a clean record for at least 28 years, and be able to show that he had caused no bodily harm. Even then, the robber would still be at the mercy of a judge.

“In theory it’s possible for people convicted of first-degree felonies to apply, but I think it would be a remarkably small number,” Haidle said.

The Legislature in the last seven years twice approved bills allowing for expunction of some criminal records, but then-Gov. Susana Martinez vetoed each of them.

Martinez was a career prosecutor before her election as governor, and she had warred with then-Senate Majority Leader Michael Sanchez, D-Belen, sponsor of both those bills.

With Michelle Lujan Grisham now in the governor’s office, advocates of HB 370 hope the measure has a chance of becoming law.

The bill is sponsored by Democratic Reps. Antonio “Moe” Maestas of Albuquerque and Andrea Romero of Santa Fe.

Because senators amended the bill, it will have to go back to the House of Representatives for concurrence. If House members agree with the changes, the bill would advance to Lujan Grisham for her consideration.