Expungement and record sealing refer to the legal procedures that erase your criminal record and render it inaccessible to the public, including having it viewed during a criminal background check. These records do remain available to the New Mexico Attorney General's Office and to the U.S. Military, however.
What is Expungement or Sealing?
In New Mexico, there is no difference between expungement and record sealing, and state law only uses the terminology associated with expungement. You can obtain an expungement of your arrest, investigation and DNA records for only very limited criminal cases in New Mexico.
An expungement is not a permanent eradication of your criminal record, so you must disclose prior convictions, as well as your expungement order, in any application for a professional license. You must also disclose any convictions if you are applying for a position in law enforcement, with the courts, or for other public employment, including running for public office. Possessing a criminal record presents significant barriers to anyone seeking employment, a professional license, bonding, international travel, public benefits or rental housing, among other opportunities.
Are You Eligible?
Although New Mexico allows expungement of a limited category of convictions, it does permit the records of most misdemeanor and petty misdemeanor offenses to be expunged if no record of their disposition exists. Unfortunately, if a record of your disposition exists, and even if the charges were dismissed or not filed, or if you participated in a diversion program that resulted in dismissal of the charges, you may not have these records expunged.
If you were convicted of a first time drug offense when you were under the age of 18, and if you had the charges dismissed or they were discharged after all conditions of probation were satisfied, you may petition for expungement of your records relating to the charge.
Another category for which expungement applies in New Mexico is if your conviction was reversed. In this instance, you can petition to have your DNA sample and records in the state DNA database expunged.
Finally, if you were the subject of a petition under the Children's Code, you can file for expungement when two years have passed since your release from legal custody, or after two years from the entry of a judgment or disposition that did not involve any type of court supervision.
Arrest records for crimes of moral turpitude are not eligible for expungement. These may include a DUI or other misdemeanor intoxicated driving offenses.
What Do You Need?
Before filing a request for expungement, you must obtain your DNA records and submit them to the administrative center. If your conviction was reversed or dismissed, you will need a certified copy of the order that references this disposition.
If you completed a diversionary program, a provisional discharge, or if you were acquitted and had no other arrests during the past year, you will need a sworn affidavit that no felony charges pertaining to this arrest have been filed.
Any criminal conviction except treason may be pardoned. A pardon is not available for deferred sentences. Only the governor has the power of pardon, and pardons are rarely granted. To be eligible, you must not have multiple felony convictions or a record of any crimes involving sexual or violent conduct. Misdemeanors and drunk driving convictions are ineligible. The waiting period before applying is five to 10 years following completion of your sentence.
Consult with a New Mexico Expungement Attorney
New Mexico law permits expungement in very limited circumstances, but it is worthwhile to pursue if your situation is eligible. Speak to a New Mexico expungement lawyer to explore your legal options.