LITTLE ROCK — A Little Rock traffic judge on Thursday declared unconstitutional a 2011 law that authorizes judges to expunge certain misdemeanor convictions, including drunken driving.
Judge Vic Fleming said Act 626 was vague, particularly in the section that says the judge is required to grant the expungement “unless the court is presented with and finds that there is clear and convincing evidence that the misdemeanor conviction should not be expunged under this chapter.”
“It is the phrase that says ‘should not be expunged’ that is highly problematical,” the judge said.
The ruling could affect a number of cases across the state where people convicted of one of the seven misdemeanors have filed paperwork with district or circuit court judges asking that their convictions be expunged under Act 626.
In Prairie County, a Carlisle man has asked the Des Arc District Court judge to expunge his conviction on a charge of sexual assault in the fourth degree. The man had been a volunteer coach in Carlisle and was asked to stop because of the conviction.
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Debra Reece, attorney for a man who wants his 10-year-old conviction expunged, said she will most likely appeal the judge’s decision to circuit court.
“My intention, if I can do it, is to definitely appeal it, but if I don’t I believe somebody is going to,” said Reece.
Fleming issued his decision after Reece and Pamela Panasiuk, attorney for a woman who asked for her DWI sentence to stipulate that the conviction will be expunged in five years, both argued that Act 626 of 2011 was constitutional.
“The statute is clear and unambiguous,” said Panasiuk, adding it clearly says that first offenders convicted of certain misdemeanors — negligent homicide, battery in the third degree, indecent exposure, public sexual indecency, sexual assault in the fourth degree, domestic battering in the third degree, and driving while intoxicated — are eligible to have their convictions expunged.
Rep. Jim Nickels, D-Sherwood, sponsor of the Act 626, said recently that he he filed the legislation after a working group of lawyers and judges looking at ways to streamline all the state’s laws dealing expungements, failed to reach an agreement before the 2011 session.
Nickels said he thought the committee had agreed that state law should be more clear on what misdemeanors should be eligible for expungement.
The measure was passed by the Legislature and signed into law by the the governor.
Under Act 626, the person requesting the expungement must have fulfilled all sentencing obligations and must have stayed out of trouble for at least five years.
In his decision Thursday, Fleming said Act 626 does not include any standards “for judges to follow in determining when a misdemeanor conviction ‘should not be expunged.’”
“Whether in the context of the seven misdemeanors, where five years would have to elapse before expungement, or in the context of the others, judges are called upon on a subjective and ad hoc basis to decide the ‘should not be expunged’ issue,’” he said.
One judge may believe five years of rehabilitation and a clean driving record was good enough for expungement of a DWI, he said.
“Another might believe one or two traffic offenses per year for five years should not bar expungement.,” he added. “Another might feel that only another DWI conviction should bar a DWI conviction’s expungement.”
Fleming said he did not think it was a “stretch at all to suggest that a dozen or more different standards could and would arise among the state’s trial courts in carrying out expungements under Act 626’s problematical language, ‘should not be expunged.’”
After Fleming’s ruling, Reece said she thought Act 626 was constitutional and that there are “all sorts of statutes that give discretion to judges to do things.”
She said Fleming’s decision does not affect convictions that already have been expunged, but it can be considered when other judges consider expungement requests under Act 626.
“Until the Arkansas Court of Appeals or the Supreme Court rules it’s unconstitutional and void, then it’s just in this court,” she said.
After reading Fleming’s opinion Thursday, Nickels said he was interested to see if the judge’s decision would be appealed.
“That’s that judge’s opinion and (Act 626) is still on the books, so to speak, until the Supreme Court says it’s unconstutional,” Nickels said. “I think the law was vauge and confusing before my bill.”
Nickels also said he would study Fleming’s decision and possibly take some of its suggestions and recommendations to the working group so legislation can be developed for the 2013 session.