LITTLE ROCK — A Little Rock traffic judge’s ruling that a 2011 law that allows judges to expunge certain misdemeanor convictions, including drunk driving, is unconstitutional is being challenged in circuit court, a Russellville attorney said Friday.
Debra Reece, attorney for a man who wants his 10-year-old DWI conviction expunged under Act 626 of 2011, said she filed the appeal in Pulaski County Circuit Court on Wednesday.
The legal challenge has been assigned to Circuit Judge Barry Sims. No hearing date has been set.
"It’s going to be real interesting to see what happens because I believe frankly that Judge Sims will not rule that (Act 626) is unconstitutional," she said. "I believe he will rule in our favor."
The legal challenge includes a petition asking the judge to grant her client the expungement request.
"There is no reason not to grant the petition," she said, adding her client "is the perfect client for this. He’s never been in any trouble since and he did everything he was supposed to do."
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.
Reece also noted that neither the city attorney nor prosecutors argued that Act 626 was unconstitutional during a July hearing in Traffic Judge Vic Fleming’s court.
"There was no side there that was trying to say that the law was unconstitutional and I don’t believe that the judge will hold it unconstitutional," she said.
In his ruling, 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 seven misdemeanors have filed paperwork with district or circuit court judges asking that their convictions be expunged under Act 626.
Along with driving while intoxicated, the other misdemeanors included in the law are negligent homicide battery, battery in the third degree, indecent exposure, public sexual indecency, sexual assault in the fourth degree and domestic battering in the third degree.
In Prairie County, a Carlisle man has asked the Prairie County 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.
Rep. Jim Nickels, D-Sherwood, sponsor of Act 6267, said recently he filed the legislation after working with a group of lawyers, judges and others looking at ways to streamline all the state’s laws dealing with expungements, failed to reach an agreement before the 2011 sessions.
Nickels said he would study Fleming’s decision, watch to see what happens in the appeal, and discuss the issue with the working group to see if legislation addressing the questions raised about the law need to be developed for the 2013 session.