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 SJC-SJC  DNP-CS/DP  fl/a- PASSED/S (23-13)  HJC-HJC  DP - PASSED/H (41-28)
Senate Bill 2 (SB 2) provides for expungement of arrest and conviction records for certain cannabis offenses, provides for recall or dismissal of sentences of incarcerated persons, revises 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.
Senate Bill 2 (SB 2) does the following: Section 1. Amends Section 28-2-3 NMSA 1978 by 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. The bill adds the following criminal records that cannot be considered: convictions that have been sealed, dismissed, expunged or pardoned, juvenile adjudications, or convictions for a crime that is not recent enough and sufficiently job-related to be predictive of performance in the position sought. However, in Section 7 of SB 2, the bill allows boards to not grant a license for “disqualifying criminal convictions.” Section 2. Amends Section 28-2-4 NMSA 1978 by amending the reasons that a board or agency may refuse to renew, suspend or revoke public employment or a license. The bill removes the ability to refuse, renew, suspend or revoke public employment or a license if the person has a misdemeanor involving moral turpitude directly relating to the profession, or a felony/misdemeanor conviction not relating to the employment if the person has not been sufficiently rehabilitated. The bill also removes the provision that completion of probation/parole (or after three years being released from prison without any more convictions) creates a presumption of rehabilitation. Section 3. Amends Section 29-3A-1 NMSA 1978 with a technical edit. Section 4. Adds a new section of the Criminal Record Expungement Act that provides that if a person was charged with an offense involving cannabis that is no longer a crime because of the Cannabis Regulation Act (or would have been a lesser offense), all public records relating to the person’s arrest or conviction are automatically expunged two years after the person’s conviction or arrest (if there was no conviction). The attorney general is tasked with directing and reviewing the expungement process from court or agency records. If a person was under 18 at the time, the records are kept for two years or until the person is 18 and then expunged. If the arrest/conviction included multiple charges, only the public records related to cannabis are expunged. The bill requires that public records must be removed from all statewide criminal databases. For crimes relating to trafficking cannabis, distribution of cannabis, or possession of cannabis, the same procedure as above is followed. Section 5. Adds a new section of the Criminal Record Expungement Act to require that within 30 days following the effective date of this section, persons who are incarcerated for an offense that is no longer a crime pursuant to the Cannabis Regulation Act must have their cases reopened or expunged. This duty is to be completed under the direction and review of the attorney general, a correctional facility, a county jail or a juvenile correctional facility. A court must reopen a case and dismiss the person’s sentence if it is legally invalid. A person who completed their sentence can have their conviction dismissed and expunged or redesignated as a penalty assessment citation. The court must dismiss and expunge public records of the convictions unless the court finds that the conviction was not legally invalid. By January 1, 2022, the Department of Public Safety (DPS) must review the public records in state criminal history databases and must identify all past convictions that could be eligible for recall or dismissal of the sentence, dismissal and expungement or redesignation. DPS must notify the Corrections Department, prosecutors and the public defender department of all eligible cases. The prosecutor has until July 1, 2022 to review cases and determine whether to challenge the dismissal, expungement or redesignation. The prosecutor may challenge the resentencing of the person if the person does not meet the criteria under the Cannabis Regulation Act, and must inform the court/public defenders if they are or are not challenging the sentence. The public defender must try to notify the person whose sentence is being challenged by the prosecutor. If the prosecutor does not challenge the sentence by July 1, 2022, the court must notify DPS that the case has been dismissed. DPS must then expunge the public record of the offense (if there are multiple charges, only the cannabis charge is expunged). A person who is incarcerated or was incarcerated in the past for an offense that is no longer a crime may petition to modify their sentence or have their conviction vacated. These provisions equally apply to juvenile adjudications if the juvenile would not have been guilty of an offense provided in the Cannabis Regulation Act. The bill provides that no fee or cost can be imposed upon a person whose sentence is reviewed under this section. Section 6. Amends Section 61-1-1 NMSA 1978 with a technical edit. Section 7. Adds a new section of the Uniform Licensing Act that forbids a board from not issuing a license to a person who is otherwise qualified on the sole basis that the person has a prior arrest or conviction of a crime, unless the person has a “disqualifying criminal conviction.” A “disqualifying criminal conviction” is defined as 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. The bill requires that by December 31, 2021, each board must create rules regarding such convictions and list disqualifying criminal convictions. Such rules cannot use the terms “moral turpitude” or “good character.” The board has the burden of proving whether the exclusion from licensure was based on a disqualifying criminal conviction. By October 31 of each year, a board must publish a public report containing information regarding the number of applicants for a license, the number granted, number with a potential disqualifying criminal conviction and those who provided evidence of mitigation/rehabilitation, and the number who had a potential disqualifying license who were granted or denied a license.
Senate Floor Amendment number 1 to SJCcs/SB 2 added that (1) the Supreme Court must create rules regarding expungement, and (2) removed references to the public defender department and replaced it with the defense counsel of record in the case resulting in the conviction. Thus, notice of an expungement case will be provided to the person’s defense counsel at the time of the conviction, whether that be a public defender or a private attorney.