New law does not automatically exempt all cannabis users from New Mexico’s criminal laws

SANTA FE, N.M. (KRQE) – While creating a recreational industry, New Mexico lawmakers also made strides in decriminalizing cannabis. A key part of that is expunging the criminal records of thousands of locals who were busted with pot before it became legal. Automatic expungement was celebrated when approved in 2021. But now, that process has hit a speedbump, and some people may be forced to kickstart their own expungement starting June 16.

“We’ve already expunged 14,000 cases,” says Celina Jones, the general counsel at the Administrative Office of the Courts. “Where the charges were very clear that they involved cannabis or marijuana, we were able to proceed with an automated expungement.”

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“We identified tens of thousands of other cases that may involve charges that are eligible for automatic expungement under the Criminal Record Expungement Act,” Jones says. The problem is that many of those records are more difficult to review.

In some instances, the records are older and not in the court’s current automated database. In other instances, cannabis charges might be mixed with other criminal offenses – and Jones from the courts says that under a new law passed this year, it’s no longer the state’s responsibility to initiate automatic expungement of those ‘mixed’ cases.

Automatic or not quite?

“The amended law clarifies that automatic expungement only applies to those ‘simple’ cases,” Jones says. “So, the independent responsibility on a state entity still lies with expunging those cases. However, [for] the ‘mixed charged’ case[s], an individual can still request review.”

In other words. The state still has to automatically expunge ‘simple’ cases, such as cases where the charges are clearly only possession of a small amount of non-synthetic cannabis and are easily accessible in the court’s database. But if your case is more complex because it includes other charges (such as a traffic ticket) in addition to just cannabis or paraphernalia possession, it’s going to be up to you to ask the courts to expunge your cannabis records.

That change – to make automatic expungement apply to only some cases – was laid out in House Bill 314, sponsored by Rep. Andrea Romero (D-Santa Fe) and Speaker Javier Martinez (D-Albuquerque). That bill amended the original cannabis expungement law passed in 2021.

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KRQE News 13 spoke with Romero, who says the automatic aspect of the expungement process has long been a key component of the state’s cannabis law.

“It’s so important and critical, when we put [the 2021] law into practice, that it was automatic – that folks didn’t have to opt-in to something to get their record cleared, that we were the ones who were going to do that for them,” Rep. Romero says.

Even though not all expungements will be totally automatic, Romero did point out that people with complex cases still can get their charges expunged under the amended law. It just now requires that the individuals – and not the state’s criminal justice system – initiate the process.

Does fully automatic expungement matter?

If there’s still a way for people with more complex cases to get cannabis charges off their record, does it matter if it’s up to the courts or up to the individual to get the ball rolling?

“It is not just a nice thing to do. It is literally, I think, an obligation of the same state that used its resources to punish people for something that we now say is not a crime to then go back and remove the consequences of that,” University of New Mexico Law Professor Serge Martinez says. “The state has compared to any individual, massive, massive amounts of resources.”

A key reason why the law was changed is that wiping the records of all cannabis charges that are now legal is a difficult undertaking, bill sponsor Andrea Romero says. But Martinez from UNM says that if anyone is up to the challenge, it’s the state.

Martinez also points out that even though the outcome might be the same in many cases, an opt-in process is a lot different than a fully automatic expungement process. “You lose so many people, and so many of the benefits that come from that, when you make people opt in,” He says, especially given the fact that not everyone in New Mexico has reliable access to the internet.

Martinez also points out that expungement matters. A cannabis charge – which anyone can search for free on the state’s court website – can impact someone’s ability to get a job or even rent a home, Martinez says.

And it’s worth remembering that the debate over cannabis expungement isn’t just focusing on convicted criminals. In some cases, individuals can get a marred record without ever being tried in a court of law.

“To me, it’s sort of astonishing that if you get arrested and then acquitted or the charges get dropped, that’s still on your record. It’s still public record,” Martinez says. “It should not be on you to undo that.”

But lawmaker Andrea Romero says that cannabis charges tied up with more ‘complex’ cases are less likely to be the sole stumbling block keeping someone from getting a job or home. So, the logic from Romero and some other lawmakers goes: There’s no urgent need to make expungement entirely automatic for those more complex cases.

“For those that are really complicated, where maybe it was a cannabis charge among many others, and perhaps more extreme charges – that wouldn’t be a priority for the court,” Romero says. “That charge really isn’t going to impact [the person] overall, when you look at the rap sheet.”

Martinez from the University of New Mexico pushes back on that idea. He says that for individuals with other criminal history – or even the records of deceased New Mexicans – expungement is worthwhile.

“Symbolism is powerful,” Martinez adds. “People who are deceased, they have descendants. They have relatives who maybe don’t want to have that on their record.”

Republican lawmaker Bill Rehm (Albuquerque), who voted against the expungement bill when it first passed in 2021, offers another reason to not put public resources towards making expungement fully automatic for everyone, especially those that were convicted of what was once a crime.

“That’s part of the consequences of being convicted,” Rehm says. “You’ve got to take ownership. You’ve got to clean up your own record.” But Rehm also says he understands the symbolism behind expungements.

What happens next?

For the people with records already expunged (the 14,000 ‘simple’ cases so far), the work is done. Their records are gone, according to the courts. In fact, the courts don’t even have a way to notify those people their records have been expunged.

For the people who have charges eligible for expungement but are tied up in more ‘complex’ cases, Jones from the courts says there will soon be an online portal for people to ask for expungement.

“The idea behind this portal will be a simple, one-page request,” Jones explains. “It should be simple, straightforward, and accessible to anyone – and free.”

But lawmakers are hinting that the expungement process could change again in the future. Bill Rehm says he wouldn’t be surprised to see the courts ask for more funding. And given the challenge of trying to address tens of thousands of criminal records, lawmakers might need to keep adjusting the law, according to Democratic Senator Jerry Ortiz y Pino (Albuquerque).

“We may need to revisit this,” Ortiz y Pino says. “I’m concerned that we may have, without meaning to, really slowed down the process of expungement.”

It seems unlikely that the state will be able to expunge every cannabis charge under the expungement law, Martinez from UNM says. But, he says the state still has a long way to go before it can say it gave a good effort.

“It’s one thing to say, ‘We have done everything we could,’” Martinez explains. But he argues that the state seems to be saying, “‘Well, we’ve tried this for a couple years and now it’s getting hard, so we should probably stop,’” at least when it comes to making the process fully automatic.

Yet, even if all the records are cleaned, Senator Ortiz y Pino points out that a lot of the harm has already been done and can’t be undone.

“We can’t do away with the cost, with the social cost of [individuals] not having been able to finish their playing career as an athlete, for example,” Sen. Ortiz y Pino says, “or of not being able to buy that house because the mortgage company would not finance somebody with a [cannabis] offense on their record.”

“The consequences can’t be expunged,” Ortiz y Pino says. But the state can ensure that more consequences don’t follow people with cannabis charges as they try to live life moving forward.