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F I S C A L I M P A C T R E P O R T

SPONSOR Martinez

DATE TYPED 02/17/05 HB

SHORT TITLE Criminal Record Expungement Act

SB 646

ANALYST Ford

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

Minimal – See

Narrative

(Parenthesis ( ) Indicate Expenditure Decreases)

Conflicts with

HB 246, HB 734

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General (AGO)

Children, Youth and Families Department (CYFD)

Human Services Department (HSD)

Public Education Department (PED)

SUMMARY

Synopsis of Bill

Senate Bill 646 codifies the practice for courts to expunge an individual’s criminal record in

specified circumstances.

It provides that the court shall expunge the public records and files within 30 days of when an

accused files a petition if the court finds that no other charge or proceeding is pending against the

accused, and that:

•

The accused was a victim of identity theft,

•

The accused was released without a conviction in a proceeding for a violation of a mu-

nicipal offense, misdemeanor or felony,

•

The accused was convicted for an offense but has no other conviction after completion of

Senate Bill 646 -- Page 2

the sentence for the original conviction for a period of 2 years after a misdemeanor not

including an offense committed against minors or children, a sex offense, or an offense

involving domestic violence,

•

The accused was convicted of misdemeanor aggravated battery but has no other convic-

tion after completion of the sentence for the original conviction for a period of 4 years.

The effect of an expungement order is that the related proceedings are treated as if they never

occurred and officials and the accused may reply to an inquiry that no record exists with respect

to the accused.

The bill does not affect the expungement provisions of Section 29-3-8.1 NMSA 1978. This sec-

tion allows

a

person to petition the department of public safety to expunge arrest information on

the person's state record or federal bureau of investigation record if the arrest was for a misde-

meanor or petty misdemeanor offense and the arrest was not for a crime of moral turpitude.

The bill provides that when an expungement order is issued to the CYFD, PED or HSD, the de-

partment may comply with such an order by notifying the court that the records are confidential

public records and must be maintained for audit or other purposes, detailing identifying informa-

tion and later releasing the records when permitted by law, or deleting information related to the

expungement order when permitted by law.

Significant Issues

The bill provides for expungement if the accused was a victim of identity theft. However, it may

be prudent for the bill to be more specific so that the bill does not allow information to be ex-

punged regarding crimes that the person actually did commit. The bill could specify that the ac-

cused was a victim of identity theft, and the charge or arrest information results from the unau-

thorized use of the person’s identity.

The AGO notes that the bill allows for expungement when a charge was discharged, but does not

specifically mention “conditional discharge” or the use of conditional discharge information is

sentencing enhancements.

CYFD notes that this bill conflicts with other statutes. The New Mexico Criminal Offender Em-

ployment Act allows misdemeanors of moral turpitude to be used to bar a person from employ-

ment or licensure for up to three years. Also, CYFD family services refuses background clear-

ance on the basis of some of the enumerated misdemeanor offenses and considers some misde-

meanors that are directly related to the ability to provide a safe responsible and morally positive

setting for children. In these circumstances, CYFD takes into account some misdemeanors com-

mitted up to seven years prior.

PED raises the question of whether a person on probation or who has violated probation during

the applicable period since conviction would qualify for expungement.

FISCAL IMPLICATIONS

The bill may result in increased costs to the courts for rulemaking and to conduct hearings for

expungement petitions. There may also be minor costs to departments to comply with expunge-

ment orders.

Senate Bill 646 -- Page 3

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

HB 734 and HB 246 provide for the expungement of records in cases of identity theft.

TECHNICAL ISSUES

AGO notes that arrest records are defined to include information gathered from the national

crime information center (NCIC). While New Mexico courts would have jurisdiction to expunge

information from a state record, once the information was transferred to NCIC it would be the

federal agency’s property and not subject to New Mexico expungement orders.

HSD recommends an amendment to require the courts to provide notice to CYFD, HSD, and

PED of a court’s motion or the filing of a petition for expungemet so that representatives of the

departments can determine if they have any of these records and respond accordingly.

PED notes that two other sections relate to expungement of arrest information: Sections 30-31-

28 and 32A-3B-21 NMSA 1978.

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