A criminal record, even when it doesn’t result in a conviction can have a devastating impact. Convictions, dismissals, and even arrest records can appear in a routine background check that an employer or landlord will run when a person applies for a job or a place to live.

These impacts are commonly known as collateral consequences of an arrest or conviction. Even after completing a sentence, probation, or paying restitution, those who found themselves as a defendant in a criminal case can be held back and penalized years later without realizing it.

At the beginning of this year, on January 1, 2020, the New Mexico Criminal Expungement Law Act went into effect, providing New Mexicans relief from collateral consequences of a criminal prosecution.

What is Expungement?

As defined by the statute, an expungement means to remove access to the record of an arrest, conviction, dismissal, and pleas related to a criminal prosecution from the public. Information about the record will also be removed from the website of the courts and law enforcement. People who have their records expunged can legally answer no to the question about whether they were ever arrested or convicted.

Types of Expungements

Expungement for crimes because of identity theft

When a person’s name surfaces in a crime because their identify was stolen, they can petition the court to expunge the record. Within 30 days after the hearing in court on the petition, the court will issue the order to expunge the records related to the wrongful arrest and prosecution.

The only requirement to getting this type of expungement is proving the stolen identity.

Expungement for crimes that did not result in a conviction

For crimes that did not result in a conviction because the charges were dropped or the trial resulted in an acquittal, a person can still expunge the records related to it. This also includes cases where a defendant was given a preprosecution diversion program.

One year after the final disposition of the case, a person can petition the court to expunge the record if there are no current changes against them, and that the prosecution did not result in a conviction. The court will order the expungement within 30 days after a hearing on the petition. For this class of expungements, they will have to serve notice of the petition on the following parties:

• The district attorney for the district;
• The department of public safety;
• The law enforcement agency that arrested them.

Expungement for crimes that resulted in a conviction

This class of expungement has the highest standard for a successful petition. First, the petitioner has to have completed their sentence, along with fines and fees owed to the state for the conviction.

When filing the petition, the petitioner must serve the notice on the following parties:

• The district attorney for the district;
• The department of public safety;
• The law enforcement agency that arrested the petitioner.

In addition:

1. The petitioner must not have a pending charge against them;
2. Justice will be served by an order to expunge (scroll further down for this definition);
3. The petitioner fulfilled any victim restitution ordered by the court in connection to the conviction; and
4. Depending on the crime, the petitioner must have not had another conviction for a (waiting) period as described below:

In determining if justice will be served by an order to expunge, the court must consider the following factors:

• The nature and gravity of the offense or conduct that resulted in the petitioner’s conviction;
• The petitioner’s age, criminal history and employment history;
• The length of time that has passed since the offense was committed and the related sentence was completed;
• The specific adverse consequences the petitioner may be subject to if the petition is denied;
• Any reasons to deny expungement of the records submitted but the district attorney.

Exceptions

For crimes that resulted in a conviction, expungement is not an option for any the following:

• An offense committed against a child,
• An offense that caused great bodily harm or death to another person,
• A sex offense as defined in Section 29-11A-3 NMSA 1978,
• Embezzlement pursuant to Section 30-16-8 NMSA 1978
• Or an offense involving driving while under the influence of intoxicating liquor or drugs.

According to the Restoration of Rights Project, the Criminal Record Expungement Act in New Mexico is one of the broadest record-closing laws in the country, restoring rights to those to have been convicted and accused of crimes in the state, removing its collateral consequences.

If you have faced prosecution in the past or were convicted of a crime, it is worth looking taking advantage of this new expungement law so that you can seal these records and move forward with peace of mind.

If you have any questions about expungement in the state of New Mexico, please give the Law Office of William Ha a call at (505) 658-4320 for a consultation.