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Few people in state, county have sought expungement

Copyright © 2020 Albuquerque Journal

Court officials in Bernalillo County continue to brace for a possible onslaught of expungement cases despite what seems like a tepid first month.

According to the Administrative Office of the Courts, about three dozen petitions were filed statewide in January. Fifteen of those were filed in the 2nd Judicial District in Bernalillo County.

“It’s not a huge number, considering the cases that we know that are eligible already to have petitions filed,” Chief Judge Stan Whitaker said in an interview. About half of those cases were filed by litigants representing themselves.

The new law gives New Mexicans an avenue for limiting public access to a range of arrest and conviction records. As to convictions, there are waiting periods that increase based on the seriousness of the crime, and certain crimes are exempt altogether. For example, records of convictions for certain sex offenses, crimes that involved great bodily harm or death, and drunken driving cannot be expunged.

People wrongly identified in an arrest or public record, and people who were criminally charged but never convicted of a crime are also eligible for expungement.

Among the first to petition for expungement are a man with a 2003 marijuana possession conviction; a man arrested in 2016 on a domestic violence charge that was dismissed when the alleged victim failed to attend a preliminary hearing; a man convicted of burglary in 1982; and a woman seeking to expunge a conviction against her deceased husband.

The state Department of Public Safety has estimated that around 600,000 of its records would be subject to expungement.

Whitaker said the court in recent weeks posted forms on its website that should standardize the process and help petitioners navigate it. He expects that may lead to an uptick in filings and said the court is still anticipating a flood.

“I hope it’s just not a tsunami,” Whitaker said.

To prepare, Whitaker said, the court is asking for a special appropriation of around $323,000 to cover the costs of administrative assistants, a special master and a staff attorney who would essentially run an expungement court.

“If we don’t find that the numbers rise to the level that we have concerns about, of course those funds won’t be needed and they’ll revert back,” Whitaker said in a recent presentation to the Senate Finance Committee.

Three judges from the civil division along with three from the criminal division will hear expungement cases. Hearings have not yet been scheduled.

David Pardo, who is handling expungement for the 2nd Judicial District Attorney’s Office, said the current pace of cases is very manageable. The law requires petitioners in some circumstances to notify the relevant district attorney’s office, which is invited to raise objections. Pardo said he expects that many of the cases will not be straightforward, and the DA’s Office will only speak up when necessary.

In a response to the first filing in Bernalillo County, Pardo wrote that a study in Michigan found that recipients of expungement had a lower recidivism rate than the general population. The same study determined that about 6.5% of eligible individuals sought expungement.

“It signals that people who are doing this – at least in Michigan – are (doing it) because they’re ready to turn their lives around and to move forward,” Pardo said. “That’s sort of what we want to see happen.”

Law 4 Small Business has posted an online quiz to help people determine whether they are eligible to file, which attorney Larry Donahue says continues to be very popular. He said he’s surprised that the new law has seen a slow start.

“There’s been a lot of interest but just very few people wanting to pull the trigger,” he said, adding that gathering all of the necessary information for the process takes time.

While Donahue’s company initially offered an all-inclusive package to represent clients through the entire expungement process for around $3,900, it has divided that up and is now offering a variety of related services at lower costs. For example, for a $1,000 fee, it will fill out the necessary paperwork for clients who ultimately represent themselves through the court process.

Kristy Donahue, chief marketing officer for law firm Slingshot LLC, said she believes the slow start could be a result of the reality that the general public doesn’t fully understand the law, and expungement has a bad social media reputation. But she points out that expungement offers a way for victims of identity theft and people whose cases were dismissed without a conviction to clear their names.

“The main commentary the public hears about is how this law is getting ‘criminals’ off,” she wrote in a statement. “The message isn’t being heard that it helps the innocent.”

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