SB0002

SENATE BILL 2

55th legislature - STATE OF NEW MEXICO - first special session, 2021

INTRODUCED BY

Linda M. Lopez and Andrea Romero and Javier Martínez and

Katy Duhigg and Gerald Ortiz y Pino

AN ACT

RELATING TO CRIMINAL RECORDS; PROVIDING FOR EXPUNGEMENT OF ARREST AND CONVICTION RECORDS FOR CERTAIN CANNABIS OFFENSES; PROVIDING FOR RECALL OR DISMISSAL OF SENTENCES OF INCARCERATED PERSONS; REVISING THE LIST OF CRIMINAL RECORDS THAT CANNOT BE CONSIDERED IN AN APPLICATION FOR PUBLIC EMPLOYMENT, LICENSURE OR OTHER AUTHORITY TO PRACTICE A TRADE, BUSINESS OR PROFESSION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 28-2-3 NMSA 1978 (being Laws 1974, Chapter 78, Section 3, as amended) is amended to read:

"28-2-3. EMPLOYMENT ELIGIBILITY DETERMINATION.--

A. Subject to the provisions of Subsection B of this section and Sections 28-2-4 and 28-2-5 NMSA 1978, in determining eligibility for employment with the state or any of its political subdivisions or for a license, permit, certificate or other authority to engage in any regulated trade, business or profession, the board or other department or agency having jurisdiction may take into consideration a conviction, but the conviction shall not operate as an automatic bar to obtaining public employment or license or other authority to practice the trade, business or profession. A board, department or agency of the state or any of its political subdivisions shall not make an inquiry regarding a conviction on an initial application for employment and shall only take into consideration a conviction after the applicant has been selected as a finalist for the position.

B. The following criminal records shall not be used, distributed or disseminated in connection with an application for any public employment, license or other authority:

(1) records of arrest not followed by a valid conviction; [and]

(2) [misdemeanor] convictions [not involving moral turpitude] that have been sealed, dismissed, expunged or pardoned;

(3) juvenile adjudications; or

(4) convictions for a crime that is not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position's duties and responsibilities."

SECTION 2. Section 28-2-4 NMSA 1978 (being Laws 1974, Chapter 78, Section 4, as amended by Laws 1997, Chapter 238, Section 5 and also by Laws 1997, Chapter 251, Section 1) is amended to read:

"28-2-4. POWER TO REFUSE, RENEW, SUSPEND OR REVOKE PUBLIC EMPLOYMENT OR LICENSE.--

A. Any board or other agency having jurisdiction over employment by the state or any of its political subdivisions or the practice of any trade, business or profession may refuse to grant or renew or may suspend or revoke any public employment or license or other authority to engage in the public employment, trade, business or profession for [any one or any combination] one or both of the following causes:

(1) where the applicant, employee or licensee has been convicted of a felony [or a misdemeanor involving moral turpitude] and the criminal conviction directly relates to the particular employment, trade, business or profession; and

[(2) where the applicant, employee or licensee has been convicted of a felony or a misdemeanor involving moral turpitude and the criminal conviction does not directly relate to the particular employment, trade, business or profession, if the board or other agency determines after investigation that the person so convicted has not been sufficiently rehabilitated to warrant the public trust; or

(3)] (2) where the applicant, employee or licensee has been convicted of homicide, kidnapping, trafficking in controlled substances, criminal sexual penetration or related sexual offenses or child abuse and the applicant, employee or licensee has applied for reinstatement, renewal or issuance of a teaching certificate, a license to operate a child-care facility or employment at a child-care facility, regardless of rehabilitation.

B. The board or other agency shall explicitly state in writing the reasons for a decision [which] that prohibits the person from engaging in the employment, trade, business or profession if the decision is based in whole or in part on conviction of any crime described in Paragraphs (1) and [(3)] (2) of Subsection A of this section. [Completion of probation or parole supervision or expiration of a period of three years after final discharge or release from any term of imprisonment without any subsequent conviction shall create a presumption of sufficient rehabilitation for purposes of Paragraph (2) of Subsection A of this section.]"

SECTION 3. Section 29-3A-1 NMSA 1978 (being Laws 2019, Chapter 203, Section 1) is amended to read:

"29-3A-1. SHORT TITLE.--[This act] Chapter 29, Article 3A NMSA 1978 may be cited as the "Criminal Record Expungement Act"."

SECTION 4. A new section of the Criminal Record Expungement Act is enacted to read:

"[NEW MATERIAL] EXPUNGEMENT OF ARREST AND CONVICTION RECORDS--PROCEDURE.--

A. If a person was charged with an offense involving cannabis that is no longer a crime on the effective date of the Cannabis Regulation Act or that would have resulted in a lesser offense if that act had been in effect at the time of the offense, whether or not the person is convicted, under the direction and review of the attorney general, all public records held by a court or an agency of the state or a local jurisdiction that relate to the person's arrest or conviction shall be automatically expunged two years after the date of the person's conviction or the date of the person's arrest if there was no conviction; provided that if the arrest or conviction included multiple charges, only the public records related to the cannabis charge shall be expunged. If the person is or was under eighteen years of age at the time of the arrest or conviction, the public records shall be retained for two years or until the person is eighteen years of age, whichever comes first, and shall then be expunged; provided that if the arrest or conviction included multiple charges, only the public records related to the cannabis charge shall be expunged. The public records shall be removed from all statewide criminal databases.

B. Under the direction and review of the attorney general, public records held by a court, an agency of the state or a local jurisdiction that relate to a person's arrest or conviction for trafficking cannabis in violation of Section 30-31-20 NMSA 1978, distribution of cannabis or possession with intent to distribute cannabis in violation of Section 30-31-22 NMSA 1978 or possession of cannabis in violation of Section 30-31-23 NMSA 1978 prior to the effective date of the Cannabis Regulation Act shall be expunged after two years from the date of the person's conviction or from the date of the person's arrest if there was no conviction; provided that if the arrest or conviction included multiple charges, only the public records related to the cannabis charge shall be expunged. If the person was under eighteen years of age at the time of the arrest or conviction, the public records shall be retained until the offender is eighteen years of age and shall then be expunged; provided that if the arrest or conviction included multiple charges, only the public records related to the cannabis charge shall be expunged. The public records shall be removed from all statewide criminal databases."

SECTION 5. A new section of the Criminal Record Expungement Act is enacted to read:

"[NEW MATERIAL] RECALL OR DISMISSAL OF SENTENCES--INCARCERATED PERSONS.--

A. Within thirty days following the effective date of this section, under the direction and review of the attorney general, a correctional facility, a county jail or a juvenile correctional facility in which a person is currently incarcerated for an offense that is no longer a crime pursuant to the provisions of the Cannabis Regulation Act, or that would have resulted in a lesser offense if that act had been in effect at the time of the offense, shall notify the court that the convicted person's case may be:

(1) reopened to consider possible recall or dismissal of the person's sentence; or

(2) expunged pursuant to the provisions of the Criminal Record Expungement Act.

B. A court shall reopen a case pursuant to Subsection A of this section and dismiss the person's sentence if it is legally invalid.

C. A person who has completed the person's sentence for a conviction, whether by trial or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense if the Cannabis Regulation Act had been in effect at the time of the offense is entitled to have the conviction dismissed and expunged because the prior conviction is now legally invalid or redesignated as a penalty assessment citation. The court shall dismiss and expunge the public records of the conviction as legally invalid because of the enactment of the Cannabis Regulation Act, unless the court makes a finding that the conviction is not legally invalid or was not redesignated as a penalty assessment citation pursuant to that act.

D. On or before January 1, 2022, the department of public safety shall review the public records in the state criminal history databases and shall identify all past convictions that are potentially eligible for recall or dismissal of sentence, dismissal and expungement or redesignation pursuant to the Cannabis Regulation Act. The department of public safety shall notify the corrections department, prosecutors and the public defender department of all cases that are eligible for recall or dismissal of sentence, dismissal and expungement or redesignation.

E. The prosecutor of the case shall have until July 1, 2022 to review all cases and determine whether to challenge the recall or dismissal of sentence, dismissal and expungement or redesignation.

F. The prosecutor of the case may challenge the resentencing of a person pursuant to this section when the person does not meet the criteria established under the

Cannabis Regulation Act.

G. On or before July 1, 2022, the prosecutor of the case shall inform the court and the public defender department when the prosecutor of the case is challenging a particular recall or dismissal of sentence, dismissal and expungement or redesignation. The prosecutor of the case shall also inform the court when the prosecutor of the case is not challenging a particular recall or dismissal of sentence, dismissal and expungement or redesignation.

H. The public defender department, upon receiving notice from the prosecutor of the case, shall make a reasonable effort to notify the person whose recall or dismissal of sentence, dismissal and expungement or redesignation is being challenged.

I. If the prosecutor of the case does not challenge the recall or dismissal of sentence, dismissal and expungement or redesignation by July 1, 2022, the court shall notify the

department of public safety that the case has been dismissed. Upon notice, the department of public safety shall expunge the public record pertaining to the offense; provided that if the arrest included multiple charges, only the cannabis charge shall be expunged.

J. A person who is currently incarcerated or who was incarcerated in the past for an offense that is no longer a crime may at any time petition to modify the person's criminal sentence or to have the person's conviction vacated.

K. Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to a person who was convicted of or incarcerated for a cannabis offense.

L. The provisions of this section shall apply equally to juvenile delinquency adjudications and convictions of a juvenile if the juvenile would not have been guilty

of an offense or would have been guilty of a lesser offense as provided in the Cannabis Regulation Act.

M. No fee or cost of any kind shall be imposed upon a person whose sentence is reviewed pursuant to this section."

SECTION 6. Section 61-1-1 NMSA 1978 (being Laws 1957, Chapter 247, Section 1, as amended) is amended to read:

"61-1-1. SHORT TITLE.--[Sections 67-26-1 through 67-26-31 NMSA 1953] Chapter 61, Article 1 NMSA 1978 may be cited as the "Uniform Licensing Act"."

SECTION 7. A new section of the Uniform Licensing Act is enacted to read:

"[NEW MATERIAL] CRIMINAL CONVICTIONS--EXCLUSION FROM LICENSURE--DISCLOSURE REQUIREMENT.--

A. A board shall not exclude from licensure a person who is otherwise qualified on the sole basis that the person has been previously arrested for or convicted of a crime, unless the person has a disqualifying criminal conviction.

B. By December 31, 2021, each board shall promulgate and post on the board's website rules relating to licensing requirements to list the specific criminal convictions that could disqualify an applicant from receiving a license on the basis of a previous felony conviction. Rules relating to licensing requirements promulgated by a board shall not use the terms "moral turpitude" or "good character". A board shall only list disqualifying criminal convictions.

C. In an administrative hearing or agency appeal, a board shall carry the burden of proof on the question of whether the exclusion from occupational or professional licensure is based upon a disqualifying criminal conviction.

D. No later than October 31 of each year, while ensuring the confidentiality of individual applicants, a board shall make available to the public an annual report for the prior fiscal year containing the following information:

(1) the number of applicants for licensure and, of that number, the number granted a license;

(2) the number of applicants for licensure or license renewal with a potential disqualifying criminal conviction who received notice of potential disqualification;

(3) the number of applicants for licensure or license renewal with a potential disqualifying criminal conviction who provided a written justification with evidence of mitigation or rehabilitation; and

(4) the number of applicants for licensure or license renewal with a potential disqualifying criminal conviction who were granted a license, denied a license for any reason or denied a license because of the conviction.

E. As used in this section, "disqualifying criminal conviction" means a conviction for a crime that is recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position's duties and responsibilities."

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