The Law Office of Scott M. Davidson

Your Attorney for Federal and State Appeals

FAQs

Can I get an expungement if I have been wrongfully arrested?

In most cases, if your criminal record is otherwise spotless, the court has the discretion to expunge the public record of an arrest that is unlawful in extraordinary cases, particularly when the charges were later dropped or you were not convicted of a crime. Each case is different. Please contact JustAppeals.Net to see if your wrongful arrest is a good candidate for discretionary expungement.

Can I get an expungement if my charges were dismissed?

In most cases, if your criminal record is otherwise spotless, the court has the discretion to expunge court records in extraordinary cases where the prosecutor chose not to go forward with the charges, or where the court has dismissed the charges. If you went to trial and were acquitted, you may be entitled to have the record of those charges expunged if your case is found to be extraordinary. Each case is different. Please contact JustAppeals.Net to see if your case is a good candidate for discretionary expungement.

Can I get an expungement if I was convicted of a crime?

No, but you might be entitled to a different form of relief under the law. Generally, a conviction will remain on your record indefinitely, unless it is later vacated by a court or pardoned by the Governor. If your conviction was unlawful, you may be entitled to habeas corpus or other post-conviction relief. In addition, your conviction may be eligible for a pardon by the Governor, or other form of executive clemency. Each case is different. Please contact JustAppeals.Net to see if your conviction is a good candidate for habeas corpus, post-conviction relief, or executive clemency.

Can I get an expungement if I pled no contest?

A no contest plea is, in many cases, essentially the same as a guilty plea. Although there some instances in the law where a no contest plea is different from a guilty plea, for most purposes, they are treated the same. If you pled no contest, it’s similar to a guilty plea, and your case is most likely not a good candidate for a discretionary expungement, because it resulted in a conviction. But if your conviction was unlawful, or your case is a good candidate for executive clemency, the law provides avenues for relief. Please contact JustAppeals.Net to see if your conviction is a good candidate for habeas corpus, post-conviction relief, or executive clemency.

Can I get an expungement if I pled guilty but was never incarcerated?

A guilty plea, even if it does not result in any jail or prison time, is still a guilty plea. If your case resulted in a conviction, then you are not eligible for a discretionary expungement. But if your conviction was unlawful, or your case is a good candidate for executive clemency, the law provides avenues for relief. Please contact JustAppeals.Net to see if your conviction is a good candidate for habeas corpus, post-conviction relief, or executive clemency.

Can I get an expungement if my charges were dismissed in Metro Court?

If you were charged with a misdemeanor in Bernalillo County Metropolitan Court, and your charges were dismissed “without prejudice” due to the officer’s not showing up for trial, your public record may show these charges indefinitely. In such case, you may be entitled to expungement. Dr. Davidson believes there is a good argument that your right to due process of law has been violated where you are innocent, you were wrongfully charged, perhaps wrongfully arrested, and were never tried due to the failure of the complaining witness to show up for trial. In these cases, the Metro Court may dismiss your case “without prejudice.” This means that the charges have been dismissed, but “without prejudice” also means the prosecution may bring the charges against you again in the future. Dr. Davidson believes that allowing this stain to remain on your good name forever runs contrary to the presumption of innocence and your right to due process of law. Depending on the case, you may be entitled to have these adverse records removed from your public profile on the internet. Please contact JustAppeals.Net to see if your conviction is a good candidate for legal expungement due to violation of your constitutional rights.

How long does it take to get an expungement?

It varies from case to case, but generally the six steps of an expungement case can take anywhere from several months to more than a year. The process involves the following five steps: (1) obtaining all relevant records and other documents from you, the court, law enforcement agencies, and other sources; (2) preparing the expungement petition and supporting documents for filing, (3) allowing opposing parties time to respond, (4) preparing and filing an optional reply and other briefs, (5) preparing for a hearing before the district judge on your petition for expungement and (6) following up with various public agencies to ensure they have complied with the court’s order, have removed your records from publicly-accessible databases, and so forth. The process is often not quick, and success is not certain, but if you have an extraordinary case, it may be worth the effort to clear your name. Please contact JustAppeals.Net to see if your case is a good candidate for expungement.

What is the difference between a discretionary expungement and a legal expungement?

Whereas a discretionary expungement asks the court to exercise its discretion to seal from public view an adverse record for equitable reasons, a legal expungement seeks a court order of expungement on grounds of a legal defect in the adverse record.

Generally, a discretionary expungement may be obtained from a court where there are extraordinary circumstances warranting removing an arrest record or other adverse court records from public view. In such cases, the court is under no legal obligation to grant an expungement petition. If you have a long criminal history, generally that will be a disqualifying factor. Also, if the conduct at issue involves serious criminal conduct, such as a serious violent felony, a sex offense, or heinous conduct, the equities in your case might be so unfavorable as to make an expungement unlikely or impossible. But if you have an otherwise spotless record—nothing else but traffic tickets, for instance—and your case involves a relatively minor charge, and the equities of your case are otherwise favorable to you, you may have a good case for discretionary expungement. Dr. Davidson has obtained expungements for erroneous records pertaining to wrongful allegations of felonies, but it is generally more difficult than for erroneous records pertaining to wrongful allegations of misdemeanors, due to the different equities involved.

By contrast, a legal expungement refers to removal of an adverse record from public view due to a constitutional or other fundamental legal defect in the public record. For example, in the Bernalillo County Metropolitan Court, and perhaps magistrate courts elsewhere in New Mexico, many individuals are charged of a crime by a law enforcement officer, summoned to court without being arrested, and without there being any judicial finding of probable cause to support the allegation in the criminal complaint. In these cases, the charges may be dismissed “without prejudice.” Even though there is no finding of probable cause by a judge or grand jury, and the charges have been dismissed, the allegations—which may be false and entirely without factual support—will remain on your public record indefinitely. Currently, New Mexico law allows these adverse courts records to be available to the public for free on the internet. With a few clicks, anyone can freely pull up this bad information about you. Dr. Davidson believes that this violates your right to due process of law and the presumption of innocence. When you are innocent, there should not be on your public record forever a public accusation—without any finding of probable cause by a judge or grand jury—that you committed a crime. The accusation is not a conviction in the eyes of the law, but to an employer, or a potential landlord, it can be a disqualifier. Please contact JustAppeals.Net to see if your case is a good candidate for a discretionary expungement or a legal expungement.

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