The Cannabis Regulation Act of 2021 (“CRA”) did not only legalize recreational cannabis, but also provided a mechanism for individuals who have been charged or convicted of conduct that is now deemed legal to have their criminal records expunged.
However, the initial bill was less than ideal laying out the process for expungement, how individuals could confirm that their records were expunged, and, unfortunately, there have been hiccups in the actual process of expungement. Furthermore, and most importantly, the Cannabis Expungement process did not destroy the records that the State held at the Department of Public Safety. Thankfully, the NM Legislature, in 2023, appears to have fixed the issues surrounding Cannabis Expungement, especially those involving the retention of records by the State.
What is Expungement, Generally?
Expungement in New Mexico means, “the removal from access to the general public of a notation of an arrest, complaint, indictment, information, plea of guilty, conviction, acquittal, dismissal or discharge record, including a record posted on a publicly accessible court, corrections or law enforcement internet website.” NMSA 29-3A-2.
Further, after an expungement is granted in New Mexico, the Court shall enter an order declaring, “the proceedings shall be treated as if they never occurred, and officials and the person who received the order to expunge may reply to an inquiry that no record exists with respect to the person; provided that arrest or conviction records shall be disclosed by the person and officials in connection with any application for or query regarding qualification for employment or association with any financial institution regulated by the financial industry regulatory authority or the securities and exchange commission.” NMSA 29-3A-7.
Thus, while the Courts are authorized to grant expungements, which is a great first step, the criminal records are merely sealed from the purview of the public and are not fully destroyed.
How is Expungement changing for cannabis related conduct?
Regarding cannabis, specifically, the CRA authorized mandatory and automatic expungements of criminal histories related to Cannabis conduct that is now deemed legal. In other words, if you were convicted of non-felony possession, that conduct should be automatically expunged from your record. If it is still a crime, like unauthorized distribution, you are not eligible for automatic expungement. That said, for conduct that is still not authorized by law, you still may be eligible for expungement under Expungement with Convictions or Expungement without Convictions.
In 2023, the New Mexico Legislature appears to have tightened up the language regarding cannabis, specifically, and passed language that declares, “Automatic expungement applies to records involving only cannabis and cannabis paraphernalia charges and requires destruction of records.” This is good because, unlike a regular expungement, the process destroys the cannabis related records on the State level, which are housed at the Department of Public Safety. In other words, this acts similar to a pardon, which is an executive act of Clemency under the Article V, Section 6 of the New Mexico Constitution and is defined as “an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.”
While only time will tell the full ramifications, the intent of this legislation is to now consider Cannabis Expungements as if the conduct never occurred in the first place. This may huge, especially if Federal Bureau of Investigation also recognizes the removal from the State system as if the conduct never occurred, which would mean that any adverse federal collateral consequences that stemmed from a cannabis charge or conviction should also be rectified.