What is Expungement?

Criminal Record Expungement Act: Section 29-3A1 et seq.

“Expungement means the removal from access to the general public of a notation of an arrest, complaint, indictment, information, plea of guilt, conviction, acquittal, dismissal or discharge record, including a record posted on a publicly accessible court, corrections or law enforcement internet website. The proceedings: “Shall be treated as if they never occurred, and officials and the person who received the order to expunge may reply to an inquiry that no record exists with respect to the person.“

Why get a criminal record expunged?

A criminal record affects job application, housing application, reputation, etc.

Governing Laws and Rules

  • Section 29-3A1 et seq.
  • Rule 1-077.1 NMRA (New)
  • Rule 1-004 NMRA (Process) and 1-079 (Limits on Public Access)
  • Expungement Forms 4-952 through 4-960.3

First Step: Determine eligibility

Identify category of the charges:

  • Identity Theft
  • Non-Convictions
  • Convictions
  • Automatic Expungement

Where to look:

  • SOPA
  • NM Case Lookup
  • Request the pleadings: Criminal complaint, Dismissal/Nolle prosequi, Judgment and sentence

What you are looking for:

  • What is the offense?
  • What is the disposition?
  • Date of final disposition of the case
  • End of sentence for any other criminal case

Identity Theft Expungement

  • Identity theft that resulted in victim being wrongfully identified in arrest or public records are eligible
  • NO waiting period
  • All offenses eligible

Non-Convictions

  • Acquittal/ finding of not guilty
  • Nolle, no-bill, or other dismissal
  • Referral to pre-prosecution under the Criminal Code
  • Deferred sentences under the Motor Vehicle Code: Arguably this includes DWI’s with a deferred sentence
  • Conditional discharge order, OR otherwise discharge
  • Eligible after one year if no new charges pending

Convictions

Not eligible

  • Offenses committed against a child
  • Offenses that caused great bodily harm or death to another person
  • Sex offenses as defined in SORNA, NMSA 1978, S29-11A-3
  • Embezzlement under NMSA 1978, S 30-16-8
  • DWI

May be eligible if:

  • Expungement serves the interests of justice
  • Completed sentence and payment of all fines/fees
  • Met requisite waiting period without conviction
  • Note: Waiting periods are measured from the last date of serving a sentence for any conviction in any jurisdiction

Waiting Periods (depending on charge and degree of charge)

Misdemeanor or Municipal OrdinanceTwo Years
Fourth Degree Felony or Misdemeanor Aggravated BatteryFour Years
Third Degree FelonySix Years
Second Degree Felony Eight Years
First Degree Felony or any offense under the Crimes Against Household Members ActTen Years

Automatic Expungement

  • The Criminal Record Expungement Act was amended last year in tandem with the Cannabis Regulation Act
  • Offenses now legally invalid under the cannabis Regulation Act now eligible for automatic expungement under Section 29-3A-8
  • Automatic expungement of cannabis offenses- 2 years after date of conviction or arrest: If offense no longer a crime under the CRA, If multiple offenses- only cannabis offense will be expunged
  • If eligible but has not yet been expunged, can file a petition, No filing fee required

Petitions

Must follow the forms adopted by Supreme Court Order: Forms, 4-951 (Identity Theft), 4-952 (Without Conviction), 4-953(Upon Conviction), 4-954 (Automatic).

Non Conviction

  • Record detailing offenses (docket sheet, criminal complaint)
  • Documentation showing final disposition of offense
  • DPS Record of Arrest and Prosecution (RAP) sheets, dated no later than 90 days prior o filling

Conviction

  • FBI and DPS RAP sheets, dated no later than 90 days prior to filing
  • Documentation showing completion of sentence for convictions to be expunged
  • Documentation showing completion of any other sentences
  • Documentation showing final payment of any fines and fees, victim restitution

Multiple cases?

“A petition to expunge may contain a request to expunge arrest records and public records pertaining to any number of arrests, criminal charges filed without arrest, and/or convictions in a single judicial district”

Rule 1-077.1(B)(5)

Where to file?

Expungement petitions must be filed in the district court of the county where the charges originated, the arrest occurred, or in which the conviction was entered

Rule 1-077.1(B)

Sealing of petition

Non-conviction expungement petitions shall be filed under seal and subject to requirements of Rule 1-079 NMRA

Rule 1-077.1(c)

Service of Petition

Rule 1-077.1(E) Must be made by first-class United States mail. Non-conviction Petitions: District Attorney and New Mexico Department of Public Safety. For convicted petitions: District Attorney, New Mexico Department of Public Safety and Law enforcement agency that arrested petitioner. Don’t forget to file a Certificate of Service! Forms 4-955 and 4-956.

You’ve filed your petition.. now what?

60 days for any objections to be filed: Agencies entitled to notice shall file either specific objections or a Notice of Non-Objection, If a Notice of Non-Objection is filed that party is excused from further participation, and If there is an objection based on contents of FBI RAP sheet that party must provide a copy of the FBI RAP sheet to petitioner for free when objection is filed. Once the initial 60 days has passed: file a Notice of Completion of Briefing (Form 4-959 or 4-960), Serve on any parties who filed an objection and Attach Affirmation in Support of Expungement (Form 4-960.2 or 4-960.3); must be: Signed by Petitioner, Affirms whether there are any pending chargers against petitioner and if there are new charges after petition parties have 20 more days to file objections.

Hearing on Expungement Petition

Timing: only after filing and service of Notice of Completion of briefing. Hearing required: Required for petitions to expunge a conviction and Not required for other petitions unless an objection is filed. Telephonic/Virtual: Provide notice in petition if you want a hearing to be telephonic or virtual. Remember the burden is on the petitioner so prepare to address any objections. Convictions petitions require establishing that justice will be served by the expungement : Petitioner testimony, Witness Testimony, Keep in mind the factors under Section 29-3A-5(E). The Judge must issue an order within 60 days.

Expungement Orders

  • Minimum of 60 days to complete Expungement
  • Expungement proceeding will be expunged as well
  • Court will cause a copy of an order on a petition for expungement agencies and courts
  • Order shall prohibit all relevant law enforcement agencies and courts from releasing copies of the records to any persons, expect as authorized by the Criminal Records Expungement Act, or on order of the court
  • Check! Look up the case to make sure you do not see it anymore.

FAQ’s justia.com/Expungement

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