By T.J. William – originally published in the KOAT Action 7 News website on October 5th, 2021
Thirty years ago, Cheryl was caught stealing.
“My mother died when I was 16 years old and I didn’t have a place to live, and so I went through a rough patch,” she said. “And this was part of that.”
What she stole added up to about $100 — and, back in 1984, that amounted to a felony in New Mexico.
“I never believe the sign that said that shoplifting was following you for the rest of your life. But it’s true.” Cheryl said.
Cheryl declined to have Target 7 identify her because, she said, she’s had many problems over an arrest four decades ago.
She said the conviction prevented her from going to nursing school. And, with every job, she’s had to explain the felony on her background check.
“When someone has paid their debt to society, they should be allowed to move on, pure and simple,” said State Sen. Jacob Candelaria, D-Albuquerque.
Two years ago, the New Mexico Legislature passed the Expungement Act.
It essentially says that someone convicted of a minor crime can petition the court to have the record erased.
“They disappear. They are removed from the court system. You can get arrest records removed,” KOAT legal expert John Day said. “It’s as if it didn’t happen.”
Target 7 has learned that getting records to disappear is not easy. It can be costly
and they don’t exactly go away completely.
“New Mexico’s expungement law is not a true expungement when a person has their record expunged, it does not destroy the record entirely,” XXXXXX said.
As a state senator, Candelaria backed the Expungement Act. As an attorney, he has represented more than two dozen clients who have tried to get their records to go away.
“It merely shields that record from public view,” Candelaria said.
Cheryl was able to get her records expunged.
So, if someone goes to the state court website, types in her name, no record pops up.
But, her record still exists somewhere in the Department of Public Safety archives.
State law does not require it to be destroyed.
“While expungement was a good, important step forward, the administrative complexity and the fact that it’s not a real record destruction tells me as a lawyer that we still have work to do to do the right thing here today,” Candelaria said.
Candelaria said, when the FBI runs a background check, it is not supposed to show up.
He contends he has seen cases where it has.
“Even though a court has entered an order expunging a record because we don’t have true expungement. If any of those administrative steps are missed, a person’s record is still going to show the conviction,” Candelaria said.
And, that conviction will still show up on privately owned sites. Target 7 has a resource to search background records from a private company.
So, we took it to the test and we still found Cheryl’s criminal record. Even though her record was erased at the courthouse, it was still out there before the expungement was granted.
“It’s easy to find information on the internet. If there had been an arrest, for example, a mug shot, even if the mug shot’s taken down by the county jail under an expungement order, it’s possible that that still could be out there,” Day said.
Cheryl has been able to move on. It took nearly two years and $2,500 to get her conviction expunged.
“I got my fingers crossed,” she said. “That’s exactly right. I am allowed, technically, to say that I have not been convicted of a felony.”