A criminal record never helps an individual in life – it can make it more difficult to get a job or even rent an apartment. This is particularly true of a felony conviction, but even a misdemeanor charge, later dismissed, can be an impediment.
States have different rules when it comes to expungement, the process that wipes out the history of the criminal charge or conviction. Anyone living in New Mexico will want to get an overview of the generous expungement possibilities the state offers.
What Is Expungement?
Expungement is a term that come from the verb “expunge,” meaning to erase or remove completely. Expungement is a legal process that involves the destruction or sealing of a criminal record from the official records.
If a person obtains an order of expungement, this order directs the court to treat the criminal history as if it had not happened, removing it from the individual's criminal record and the public record.
Expungement is Not the Same as a Legal Pardon
Expungement is not the same as a legal pardon. In fact, there is very little overlap. A legal pardon is granted by a public official, like the President or a state governor. A pardon essentially forgives a person for a crime, but does not necessarily require that the conviction or the charge be removed from their criminal record.
Expungement proceedings cannot be ordered by a government official, but must be granted by a state court judge.
Expungement Rules Differ by State
Rules regarding expungement are not uniform across the states. Each state determines:
- Whose records are eligible for expungement.
- Which offenses may be expunged.
- Requisite procedure for application.
- How records will be managed under an expungement order.
Some states seal expunged records, but they remain available to law enforcement. Others destroy the records. In the case of destruction, all relevant documentation is generally removed from the state court system and unavailable even to law enforcement.
New Mexico Expungement Laws
In 2019, New Mexico enacted a new expungement law that is among the most liberal expungement laws of any state in the country. Effective 2020, the law allows New Mexicans to erase their criminal records in many cases. The law (New Mexico Statutes Section 29-3A-5) applies to certain felonies and misdemeanors.
Clearing a Criminal Record
An individual can apply for an expungement after a waiting period specified in the statute. The process can clear a criminal record of:
- Misdemeanor dismissals.
- Misdemeanor acquittals.
- Misdemeanors referred to a diversionary program.
- Felony dismissals.
- Felony acquittals.
- Felonies referred to a diversionary program.
- Misdemeanor convictions with some exceptions.
- Felony criminal convictions with some exceptions.
If an expungement is granted by the New Mexico court, the law requires that “the proceedings shall be treated as if they never occurred.” This means that, while law enforcement and district attorneys may still have access to the criminal history, the expunged records are removed from public view.
The records can no longer be reported on background checks. And an individual whose record is expunged is free to answer “no” if asked whether they have ever been arrested or convicted.
Exceptions to Expungement of Records
Certain offenses cannot be expunged under New Mexico law. Section G of the statute provides that the expungement provisions do not apply to:
- Offenses committed against a child.
- Offenses that caused great bodily harm or death to another person.
- Sex offenses as defined in the statute.
- Offenses involving driving while under the influence of intoxicating liquor or drugs.
Applying for Expungement
The state of New Mexico has tried to make the expungement process available to many individuals by allowing for application without the need for an attorney. The website of the New Mexico courts offers both forms and instructions that a lay person can download. Applicants should download forms for the relevant type of case, since they are not all the same.
To apply for expungement, it is necessary to have all of the pertinent information available about the criminal arrest or records that are the subject of the expungement application. At the very least, it is necessary to have the date of the arrest, the arresting police agency and the location of the incident.
If records are lacking, contact the arresting police agency to obtain the original report. Alternatively, view the records in the criminal court that handled the case.
Applying for Dismissed Case Expungement
What is a dismissed case expungement? This means erasing the record of a criminal charge that was later dismissed, including:
- Not-guilty verdicts.
- Nolle prosequi (cases not prosecuted).
- Cases referred to a diversionary program.
- Cases granted a conditional discharge.
While these dismissed cases are not normally supposed to appear on background reports, they sometimes do. They still remain public record and anyone can get a copy of the full police report from the local police station.
A dismissed case is eligible for expungement one year after the date of the dismissal, or completion of any program requirements. Proof must be made of the dismissal by showing the court records and that any fines or restitution was paid.
Background Check Required
This eligibility only applies if the individual has no current charges pending. The application requires a New Mexico background check from the state Department of Public Service as well as a federal background check.
Court Considerations for Expungement
When the application for expungement is complete, with all required forms attached, it should be filed in the district court where the arrest or charges originated. There is a filing fee around $100 that must be paid at the time of filing. Copies of the petition and all attachments must be sent to interested agencies, including:
- District attorney.
- Department of Public Safety.
- Arresting law enforcement agency.
The court will set a hearing date for the petition, and the individual seeking expungement must appear and answer questions from the court. The court has 30 days from the hearing date to decide whether to grant or deny the petition.
If expungement is granted, the court will issue an order requiring that all arrest records and public records related to the case be expunged. The order will prohibit all relevant law enforcement agencies and courts from releasing copies of the records without court authorization.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.