Following the last legislative session, it is now possible to have your criminal record expunged in limited situations. Not all criminal charges and/or convictions may be expunged. However, there are several high volume victimless crimes that may be expunged from your record. These convictions historically have weighed most heavily on minorities and the poor. The new expungement law recognizes the injustice and harm of a lifetime criminal record for relatively minor offenses or charges even where they were acquitted or dismissed.
The burden of the prior laws on expungement as all things related to the criminal justice system fell and continue to fall on minority and poor individuals, families and communities. The long oppressive history of our criminal justice system and the prison industrial complex need not be discussed here. Suffice it to say that the expungement law is a very small step in the right direction.
Types of Charges and Convictions that May be Expunged
There are a number of categories of criminal charges and convictions that may be expunged.
EXPUNGEMENT OF RECORDS UPON IDENTITY THEFT
The only thing remarkable about this category is that expungements were not freely allowed in the past. Imagine that. The wrong person is charged and cannot have the record expunged. Worse, the wrong person is convicted and the record cannot be expunged. This has been the law in New Mexico until now. It remains the law in most of the rest of the U.S.
Returning to the opening paragraphs, if one had to guess, what segments of the population would be most heavily targeted by these types of charges and convictions? Which individuals, families and communities would be forced to bear the grossly oppressive injustice of such a legal reality?
EXPUNGEMENT OF RECORDS UPON RELEASE WITHOUT CONVICTION
This one is only slightly more remarkable. The same targeting of minority and poor communities with false charges holds true. Some might argue that not all individuals that are charged and not convicted are innocent. This is certainly true. However, our entire system of criminal justice rests on the presumption of innocence. The prior laws on expungement tossed this basic precept out the window along with any pretense of justice for those falsely charged.
The new law is fairly broad but it does have one significant limitation. A prior dismissal or acquittal may not be discharged if the person seeking expungement has current pending charges. The law does not address the situation where the person is convicted on the current charges or other past charges. The problem here again goes to the presumption of innocence. This limitation basically presumes guilt on the prior charges that were dismissed or acquitted due to new charges. There are too many issues to discuss here related to the problems with this limitation but the most obvious is that the criminal rules of evidence themselves protect against such presumptions of guilt.
EXPUNGEMENT OF RECORDS UPON CONVICTION
Convictions themselves may be expunged even in the case of felony convictions under very limited circumstances. This provision of the law is far more complex than the first two categories eligible for expungement.
It is important to note the exclusions from this provision. Criminal records may not be expunged for the following categories of crimes:
- Crimes and offenses against a child,
- Crimes and offenses causing great bodily harm or death to another person,
- Sex crimes and offenses,
- Crimes or offenses of Embezzlement, and the big one,
- Crimes or offenses involving driving while under the influence of intoxicating liquor or drugs.
Anyone with charges related to those exclusions is very likely wasting their time and their money even attempting the exclusion. Although the law may evolve over time through the courts and/or additional legislation, there are currently no exceptions to the exclusions.
For expungements of convictions, he basic premise is that justice will be served by the expungement. What this means in reality is that it is up to the judge to decide based upon individual cases. This in turn means that you are going to need work hard to gain an expungement for actual criminal convictions.
Seek Legal Counsel
Whatever category of charge or conviction that you are seeking to expunge, don’t assume that it will be easy. Don’t assume that you will get more than one shot at it. There is nothing in the law that says you will. In any criminal case or matter, you may represent yourself. You do not have to have an attorney. However, this is far different than saying it would not be better to have an attorney.
It is not clear whether there will be public defender or other public assistance for purposes of expungements. A safe guess would be that there will not be. Sadly, even a law at least in part passed to alleviate the burden on minorities and the poor, they may have the least opportunity to use the new law to their benefit.