Off the record.

Like all criminal defense attorneys, I get asked several times a week about whether it is possible to "keep this off my record." The unfortunate answer has always been "not in New Mexico." Whether it's someone who beats the charges or someone who did a really silly thing decades ago, the arrest would continue to haunt them. We have a chance to change all of that this year.

Senator Michael Sanchez (D-Belen) has introduced a bill that would authorize expungement of a criminal record under some, reasonable, circumstances. SB 294 was unanimously passed by the Public Affairs Committee earlier this week and has been passed on to the Judiciary Committee where it will likely see any serious opposition.

If history is any indicator, the bill will likely be passed by both houses of the Legislature - then promptly vetoed by Governor Martinez. Susana last year vetoed a similar bill, stating at the time that permitting expungement would "fundamentally and negatively alter the New Mexico criminal justice system."

Let's be clear, SB 294 does not authorize erasure of all arrests in New Mexico. It does provide expungement in the following limited circumstances:

• Victims of identity theft that resulted in them being improperly charged with a crime.
• Persons arrested for a crime for which they are later found not guilty or had their charges dismissed by a prosecutor or judge.
• Persons convicted of minor misdemeanors who have stayed out of trouble for at least five years. Persons convicted of misdemeanor domestic violence would have to wait for ten years, and people found guilty of DWI, a sex offense or a crime involving minors would never be eligible for expungement.

Someone should ask Governor Martinez what is so "negative" about allowing innocent victims of ID theft to clear the wrongful charges off their record? As a former prosecutor, she has been responsible for the prosecution of dozens of people who used a sibling's identity when being arrested. When the truth came out the identity thief would be charged with numerous counts of fraud and forgery (one count for every form signed at the police station or jail). But what about the innocent victim of the ID theft? Currently there is no way to clear his good name. He will forever be branded a criminal for the actions of someone else and Governor Martinez wants to keep it that way.

I thought she was an advocate for victims?

What about others who have been falsely arrested? At least once a month I take on a client who was arrested for DWI and then taken to the police station where they blow a .02 or a .04 - significantly below the .08 standard in New Mexico. I've even had cases where a client has blown a .00! These folks are all presumptively "not intoxicated" in New Mexico. Usually a good prosecutor will dismiss the case eventually, or not even pick it up for prosecution. The client never should have been arrested in the first place, but due to an officer's grave mistake the client will have a DWI arrest on his or her record for all time.

Susana, as a prosecutor you were sworn to "do justice." Where's the justice in an innocent person paying for a cop's screw-up for the rest of his or her life?

As for the convictions for minor offenses, expungement offers a terrific incentive for folks to stay out of trouble. Only people who avoid arrest for 5 years or more would be eligible to have their record wiped clean. Isn't the overall goal of the criminal justice system to correct bad behavior and protect society from repeat criminal offenses? A person who graduates college, starts a family and is employed in a good career is a much different person at 30 than she was when she picked up a shoplifting or minor in possession charge when she was 18. Shouldn't we reward her for her good behavior?

Expungement would not be automatic. It would require the person to petition a court and have the situation reviewed. If granted, the original arrests would be erased from all publicly accessible databases and "treated as if they never occurred."

The criminal justice system in New Mexico would not be "fundamentally" altered by authorizing expungement. Repeat offenders and guilty, remorseless offenders will still have to own up to their criminal past.

Expungement in limited circumstances would only have a fundamentally positive impact for all New Mexicans. I urge everyone to contact your legislator and urge passage of SB 294 and, if necessary, urge for an override of Goverrnor Martinez' expected veto.

Posted with Blogsy