HB 370/a
AN ACT RELATING TO CRIMINAL RECORDS; CODIFYING AUTHORITY TO EXPUNGE A CRIMINAL RECORD; REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. SHORT TITLE.

This act may be cited as the “Criminal Record Expungement Act”.

SECTION 2. DEFINITIONS.

As used in the Criminal Record Expungement Act:
A. “arrest records” means records of identification of a person under arrest or under investigation for a crime taken or gathered by an official; “arrest records” includes information gathered from the national crime information center or another criminal record database, photographs, fingerprints and booking sheets; except “arrest records” does not include: (1) driving while intoxicated citations maintained by the taxation and revenue department; (2) computer-aided dispatch information; or (3) log books relating to breath alcohol testing equipment;

B. “expungement” means 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; and

C. “public records” means documentation relating to a person’s arrest, indictment, proceeding, finding or plea of guilty, conviction, acquittal, dismissal or discharge, including information posted on a court or law enforcement website; but “public records” does not include:

(1) arrest record information that:
(a) reveals confidential sources, methods, information or individuals accused but not charged with a crime and that is maintained by the state or any of its political subdivisions pertaining to any person charged with the commission of any crime; or
(b) is confidential and unlawful to disseminate or reveal, except as provided in the Arrest
Record Information Act or other law;

(2) the file of a district attorney or attorney general maintained as a confidential record for law enforcement purposes and not open for inspection by members of the public;
(3) a record maintained by the children, youth and families department, the human services department or the public education department when that record is confidential under state or federal law and is required to be maintained by state or federal law for audit or other purposes; or
(4) a record received pursuant to a background check as authorized by law.

SECTION 3. EXPUNGEMENT OF RECORDS UPON IDENTITY THEFT

A. A person who is wrongfully identified in arrest records or public records as a result of identity theft may petition the district court for an order to expunge arrest records and public records.
B. After a hearing on the petition and upon a showing that the person is a victim of identity theft, the court shall issue an order within thirty days of the hearing requiring that all arrest records and public records be expunged.
C. The court shall cause a copy of the order to be delivered to all relevant law enforcement agencies and courts. The order shall prohibit all relevant law enforcement agencies and courts from releasing copies of such records to any person, except upon order of the court.
D. After notice to and a hearing for all interested parties and in compliance with all applicable law, the court shall insert in the records the correct name and other identifying information of the offender, if known or ascertainable, in lieu of the name of the person wrongly identified.

SECTION 4. EXPUNGEMENT OF RECORDS UPON RELEASE WITHOUT CONVICTION

A. One year from the date of the final disposition in the case, a person released without conviction for a violation of a municipal ordinance, misdemeanor or felony may petition the district court in the district in which the charges against the person originated for an order to expunge arrest records and public records related to that case.
B. A petitioner shall provide notice of the filed petition to the following parties, which parties shall be given an opportunity to provide to the district court any objections to the petition:
(1) the district attorney for that district;
(2) the department of public safety; and
(3) the law enforcement agency that arrested the petitioner.
C. After a hearing on the petition, the court shall issue an order within thirty days of the hearing requiring that all arrest records and public records related to the case be expunged if it finds that no other charge or proceeding is pending against the petitioner and if the petitioner was released without a conviction, including:
(1) an acquittal or finding of not guilty;
(2) a nolle prosequi, a no bill or other dismissal;
(3) a referral to a preprosecution diversion
program;
(4) an order of conditional discharge pursuant to Section 31-20-13 NMSA 1978; or
(5) the proceedings were otherwise discharged.
D. The court shall cause a copy of the order to be delivered to all relevant law enforcement agencies and courts. The order shall prohibit all relevant law enforcement agencies and courts from releasing copies of the records to any person, except upon order of the court.

SECTION 5. EXPUNGEMENT OF RECORDS UPON CONVICTION.

A. 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.
B. A petitioner shall provide notice of the filed
petition to the following parties, which parties shall be
given an opportunity to provide to the district court any
objections to the petition:
(1) the district attorney for that district;
(2) the department of public safety; and
(3) the law enforcement agency that arrested
the petitioner.
C. After a hearing on a petition, 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 the court finds that:
(1) no other charge or proceeding is pending
against the petitioner;
(2) justice will be served by an order to
expunge;
(3) the petitioner has fulfilled any victim
restitution ordered by the court in connection with the
petitioner’s conviction; and
(4) no other criminal conviction of the
petitioner has occurred for a period of:
(a) two years if the petition relates
to a conviction for a violation of a municipal ordinance or a
misdemeanor not otherwise provided in this paragraph;
(b) four years if the petition relates
to a misdemeanor conviction for aggravated battery as
provided in Subsection B of Section 30-3-5 NMSA 1978 or to a
conviction for a fourth degree felony not otherwise provided
in this paragraph;
(c) six years if the petition relates to a conviction for a third degree felony not otherwise
provided in this paragraph;
(d) eight years if the petition relates
to a conviction for a second degree felony not otherwise
provided in this paragraph; or
(e) ten years if the petition relates
to a conviction for a first degree felony or for any offense
provided in the Crimes Against Household Members Act.
D. The court shall cause a copy of the order to be
delivered to all relevant law enforcement agencies and
courts. The order shall prohibit all relevant law
enforcement agencies and courts from releasing copies of such
records to any person, except upon order of the court.
E. To determine whether justice will be served by
an order to expunge, the court shall consider:
(1) the nature and gravity of the offense or
conduct that resulted in the petitioner’s conviction;
(2) the petitioner’s age, criminal history
and employment history;
(3) the length of time that has passed since
the offense was committed and the related sentence was
completed;
(4) the specific adverse consequences the
petitioner may be subject to if the petition is denied; and
(5) any reasons to deny expungement of the
records submitted by the district attorney.
F. For the purposes of determining the time lapsed
since a criminal conviction as required in Subsection C of
this section, time shall be measured from the last date on
which a person completed a sentence for a conviction in any
jurisdiction.
G. The provisions of Subsection A of this section
do not apply to 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.
SECTION 6. NOTICES–RULEMAKING.–The administrative
office of the courts and the department of public safety
shall develop rules and procedures to implement the Criminal
Record Expungement Act, including procedures for notifying
the accused of the accused’s rights under that act.
SECTION 7. EFFECT OF AN ORDER TO EXPUNGE.–Upon entry
an of 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.

SECTION 8. REPEAL.

Sections 29-3-8.1 and 31-26-16 NMSA 1978 (being Laws 2002, Chapter 46, Section 2 and
Laws 2009, Chapter 95, Section 5) are repealed.

SECTION 9. EFFECTIVE DATE.

The effective date of the provisions of this act is January 1, 2020.

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