What is Expungement?
Expungement removes your criminal record from public view and online sources such as the New Mexico Courts website, corrections, or law enforcement websites. Once your record is expunged, you may say “no” when asked if the record exists, with some exceptions. For example, your record will still be disclosed if you are seeking employment with a financial institution. In other words, most people, including most employers and landlords, should not see an expunged record.
New Mexico law allows most juvenile records to be sealed two years after your case, probation, or placement ends. You have to submit a request to the court to start the process, and it is up to the judge whether or not to grant your request. If you were found not delinquent, the prosecutor should ask the judge to seal the record. The judge is required to grant this request.
Expungement in New Mexico is very complex, and new rules went into effect on January 1, 2020. Whether you can expunge a record is controlled by the type or "class" of the offense.
Who is Eligible for Expungement?
You are eligible to have your record expunged if you were the victim of identity theft or mistaken identity.
In general, you are also eligible to have a record expunged if:
- The case resulted in a non-conviction, including conditional discharge, pre-prosecution diversion, nolle, acquittals, etc.;
- You were convicted of a municipal ordinance or misdemeanor conviction;
- You were convicted of misdemeanor aggravated battery or a 4th degree felony conviction;
- You were convicted of a 3rd degree felony conviction;
- You were convicted of a 2nd degree felony conviction;
- You were convicted of a 1st degree felony conviction;
- You were convicted under the Crimes Against Household Members Act.
You cannot expunge the following types of records:
- Civil Cases;
- Convictions for an offense against a child;
- Convictions for an offense that caused great bodily harm or death to another person;
- You were convicted of certain sex offenses;
- You were convicted of embezzlement; or
- You were convicted of driving under the influence.
What Effect Does Expungement Have?
Once a New Mexico court grants an expungement, your record is removed from most official sources. The courts, law enforcement agencies, and other criminal justice agencies will always have access to your records, even after expungement because the records are not destroyed. However, if anyone else asks about records that have been expunged, all agencies must respond that “no such record exists with respect to such person.”
Arrest or conviction records that have been expunged may still be available for use in future criminal proceedings. These records will not be shared in most employment circumstances. However, if you are seeking employment with a financial institution, the expunged records will be shared.
Once your record is expunged, in most cases you can legally deny being arrested or convicted.
When Can I Apply for Expungement?
You can apply for expungement of a conviction only after you have completed your sentence and paid any fines or fees owed to the state for the conviction, in most instances. You must count from whatever date is the most recent, either date of conviction, completion of sentence, completion of probation or parole, or final payment of restitution. Then you must wait for several years.
In addition to the waiting period, you must demonstrate the following:
- There are no other charges or proceedings pending against you anywhere;
- Justice will be served by an order to expunge;
- You have fulfilled any victim restitution ordered by the court; and
- You were not convicted of any other crime during the waiting period.
Waiting periods can apply depending on your conviction, if:
- Your conviction was a municipal ordinance or for most misdemeanors, you must wait for two years after completion of your sentence before you can apply.
- Your conviction was for misdemeanor aggravated battery or a fourth degree felony, you must wait for four years after completion of your sentence before you can apply.
- Your conviction was for a third degree felony, you must wait for six years after completion of your sentence before you can apply.
- Your conviction was for a second degree felony, you must wait for eight years after completion of your sentence before you can apply.
- Your conviction was for a first degree felony or any offense in the Crimes Against Household Members Act, you must wait 10 years after completion of your sentence before you can apply.
The following convictions cannot be expunged:
- Offenses against a child;
- Offenses that caused great bodily harm or death to another person;
- Certain sex offenses;
- Embezzlement; and
- Driving while under the influence
How Do I Apply for Expungement?
Here are the eight steps to apply for expungement:
- Locate your records. You will need to know a lot of information in order to apply for expungement. Most of the information can be found on your law enforcement records available from the New Mexico Department of Public Safety. Some of the information may be found on your Court Record.
- Complete the appropriate forms. New Mexico has different forms depending on what type of record you are seeking to expunge. For each record you wish to expunge, you need to file the appropriate Petition to Expunge, Notice of Hearing, and Order on the Petition to Expunge. All of these forms can be found on the New Mexico Court website here: New Mexico Court Expungement Forms.
- Review each court case. There can only be one court case number per Petition to Expunge, but there can be more than one arrest and offense per cast. If you have more than one court case and you want to expunge offenses from multiple court cases, you must complete a separate Petition to Expunge for each court case.
- Attach arrest records, court records, and sentencing records to your petition. You do not need to send every document you have, but you must provide documents that show the final disposition of the case and the relevant information, such as the date, case number, charges, etc.
- Make copies of everything.
- File the Petition with the district court. Even if your case was filed in a municipal or metropolitan court or was dismissed before the district attorney or city attorney filed any court case, you must file in the district court where the arrest or charges originated.
- Pay the $132.00 fee. Acceptable forms of payment include cash, cashier’s checks, or money orders. You may be able to apply for a fee waiver so that you can apply for free.
- Provide copies of the Petition and all attachments to interested agencies. Once you have filed your Petition with the court, you must send a copy of the Petition and all documents via certified mail to the district attorney, the Department of Public Safety, and the law enforcement agency that arrested you.
After you file your Petition, the court will set a hearing date. At your hearing, you may be asked questions about your expungement request and any objections that have been filed. After the hearing, the court has 30 days to decide whether to grant or deny your petition.
More Information About Expungement