New Mexico recently enacted a comprehensive law authorizing expungement (sealing) of most non-conviction records, and of conviction records in all but the most serious violent and sexual crimes. See HB 370. Effective January 1, 2020, the Criminal Record Expungement Act (CREA) authorizes courts to limit public access to all but a limited category of non-conviction records after a one-year waiting period, as long as no charges are pending against the individual. Courts are also authorized to seal the record of most convictions after waiting periods ranging from two to ten years, upon a finding that “justice will be served by an order to expunge.” Upon taking effect, New Mexico’s CREA will be one of the broadest record-closing authorities in the Nation.
New Mexico has, at long last, passed an expungement statute, one of the best in the country. It takes effect on January 1, 2020. This means that you can petition the district court in the county where you were arrested, charged or convicted to expunge (seal) your records from public view. Someone with a prior criminal history files a petition in civil court in the county where the arrest or conviction took place. The petitioner seeks that the records of that earlier process be sealed, making the records unavailable from the state repository. If successful, the records are said to be “expunged.” This process is very different from the governor’s pardon. Black’s Law Dictionary defines “expungement of record” as the “Process by which record of criminal conviction is destroyed or sealed from the state or Federal repository.”1] While expungement deals with an underlying criminal record, it is a civil action in which the subject is the petitioner or plaintiff asking a court to declare that the records be expunged.
1. Expungement of conviction records
Under § 5A of CREA, a “person convicted of a violation of a municipal ordinance, misdemeanor or felony, following the completion of the person’s sentence and the payment of any fines or fees owed to the state for the conviction, may petition the district court in which the person was convicted for an order to expunge arrest records and public records related to that conviction.” Under § 5C, a conviction-free eligibility waiting period of between two and ten years is required,6 depending on the seriousness of the offense. Under § 5F, the waiting period “shall be measured from the last date on which a person completed a sentence for a conviction in any jurisdiction,” which appears to say that a conviction-free period following completion of sentence is all that is required, not that a person must have been conviction-free for any length of time prior to applying for expungement. A few felony and misdemeanor offenses are ineligible for relief, including those involving a child, great bodily harm or death, sex, embezzlement, or driving under the influence of alcohol or drugs. See § 5(G). Notice must be given to the district attorney and the arresting agency.
The court “shall issue an order within thirty days of the hearing requiring that all arrest records and public records related to the conviction be expunged” if it finds that no other changes are pending against the petition, that victim restitution has been paid, and that “justice will be served by an order to expunge” after considering the following:
- 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; and
- any reasons to deny expungement submitted by the district attorney.
Effect of expungement
“Expungement” is defined in § 2 of CREA as “the removal from access to the general public of a notation of an arrest, complaint, indictment, information, plea of guilty, conviction, acquittal, dismissal or discharge record, including a record posted on a publicly accessible court, corrections or law enforcement internet website.” Section 7 provides that
entry of an order to expunge, 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; provided that arrest or conviction records shall be disclosed by the person and officials in connection with any application for or query regarding qualification for employment or association with any financial institution regulated by the financial industry regulatory authority or the securities and exchange commission.
2. Expungement of non-conviction records
The only pre-2020 authority for sealing non-conviction records authorizes the State Department of Public Safety to seal records of certain misdemeanors or petty misdemeanors. See N.M. Stat. Ann. § 29-3-8.1(a). That authority is repealed by Section 8 of CREA.
Under § 4 of CREA, courts are authorized upon petition to expunge “records upon release without conviction,” which are defined to include acquittals, nolle prosequis or dismissals, a pre-prosecution referral to diversion, an order of conditional discharge, or any other discharge. (Note that it does not include a deferred imposition of sentence under N.M. Ann. § 31-20-3, discussed below, which constitutes a conviction under New Mexico law and must be addressed via § 5.) A one-year waiting period applies, and no charges can be pending. CREA authorizes sealing for the first time in several existing diversionary dispositions (see below). The only arrest records that may not be sealed are DUI citations and related police dispatch and breathalyzer records.
3. Deferred imposition of sentence
N.M. Stat. Ann. § 31-20-3 provides for deferred imposition of sentence after a guilty plea (resulting in conviction under New Mexico law), and restoration of all civil rights upon discharge. See United States v. Reese, 326 P.3d 454 (N.M. 2014)(completion of conditions and discharge restores all civil rights). In Reese, the New Mexico Supreme Court stated that “[u]nder New Mexico Law, a dismissal order following the completion of a deferred sentence is effectively a legislatively created judicial pardon.” Slip op. at 7. Effective January 1, 2020, courts will have authority after a waiting period to expunge records in cases resulting in a discharge under this authority, under the provisions of § 5 of the Criminal Record Expungement Act of 2019, discussed above. (Because this disposition is considered a conviction under New Mexico Law, the applicable waiting period is determined under § 5 rather than § 4, and other eligibility requirements and court findings also apply.)
4. Conditional discharge with judgment
Conditional Discharge without an adjudication of guilt is available, at the court’s discretion, after successful completion of probation in all cases except those involving a first degree felony so long as the person has no prior felony convictions.7 See N.M. Ann. § 31-20-3 (qualifying offenses); § 31-20-13 (conditional discharge authority). “A conditional discharge order may only be made available once with respect to any person.” § 31-20-13.
Effective January 1, 2020, courts will have authority to expunge records in cases resulting in a conditional discharge under § 31-20-13, upon petition after a one-year waiting period, as long as no charges are pending. See § 4 of the Criminal Record Expungement Act of 2019. discussed above.8.
Though a conditional discharge does not result in an adjudication of guilt or a conviction, it may be used for subsequent habitual offender sentencing. See § 31-18-17. Gun rights are apparently not lost under state law following discharge, see § 30-7-16(c)(2), nor are federal gun rights lost under 18 U.S.C. § 921(a)(20), see United States vs. Valerio, 441 F.3d 837, 841 (9th Cir. 2006).
5. Conditional discharge for first-time drug possession
In addition to the general conditional discharge authority under N.M. Stat. Ann. § 31-20-13, first time drug possession offenders may also receive a conditional discharge under distinct authority at § 30-31-28(C). Conditional discharge under § 30-31-28(C) operates in substantially the same manner as discharge under the general statute, and is only available once. Until January 1, 2010, records of proceedings resulting in conditional discharge as a first-time drug possession offender may be expunged only if the offender was 18 or younger at the time of commission. 30-31-28(D). After that date, courts will have authority to expunge records in cases resulting in a conditional discharge under this provision without regard to the petitioner’s age, as under § 31-20-13 (above), after a one year waiting period, as long as no charges are pending. See § 4 of the Criminal Record Expungement Act of 2019. discussed above. Discharge under section 30-31-28 “shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime including the penalties prescribed under this section for second or subsequent convictions or for any other purpose.” § 30-31-28(C).
6. Sealing of juvenile records
Juvenile records are generally unavailable to the public. N.M. Stat. Ann. § 32A-2-32. Sealing is available under N.M. Stat. § 32A-2-26. Upon motion to the court made by a person over 18 years old (or younger, upon a showing of good cause), the court is required to seal all records so long as two years have passed since release from custody/supervision (or entry of judgement), and there have been no subsequent adjudications or convictions for any felony or misdemeanor involving moral turpitude during that time, and no charges are pending. § 32A-2-26(A). A sealed record is treated as though proceedings never took place, and a person may deny the existence of any sealed record. § 32A-2-26(C). See also § 31-30-28, discussed supra, allowing for expungement of drug possession proceedings.
7. Sealing for victims of human trafficking
On petition to the district court, a victim of human trafficking who has been “charged with crimes arising out of the actions of someone charged with human trafficking may have all legal and law enforcement records of the charges and convictions in the person’s case sealed,” as long as the “charge or conviction is for a non-homicide crime.” N.M. Stat. § 30-52-1.2. The court must find that the “petitioner’s involvement in the offense was due to duress, coercion, use of force, threat to or fraud committed against the petitioner by a person who has committed human trafficking involving the petitioner,” and must give “reasonable notice of the petition” to the district attorney who filed the original case. “Upon the entry of the sealing order, the proceedings in the case shall be treated as if they never occurred and all index references shall be deleted.” § 30-52-1.2 (C). “Inspection of files and records or release of information in the records included in the sealing order may be permitted by the court only upon subsequent order of the court on a showing of good cause after notice to all parties to the original petition.” § 30-52-1.2(D)