Sealing and Expunging Criminal Records in New Mexico

Having a public criminal record in New Mexico may affect the record holder negatively. For instance, ex-convicts whose records are available on the New Mexico Case Lookup may find it hard to get employment, housing, and access to other social opportunities. As a result, most offenders seek to seal or expunge their criminal records upon fulfilling the requirements of the law. The process of sealing a record in New Mexico involves petitioning the appropriate criminal court.

Once the petition is filed, the presiding judge is tasked with deciding whether the applicant’s criminal record meets the criteria contained in the new Criminal Record Expungement Act (CREA). Also, in the new CRE Act, records such as juvenile adjudications, crimes by human trafficking victims, and first drug violations (under 18) may be expunged in New Mexico.

The Difference Between Sealing and Expunging Criminal Records

To seal a New Mexico criminal record is quite similar to an expungement in the state. A sealed New Mexico record still exists but is restricted. Criminal records usually don’t show up on any background check. Also, the documents can not be accessed by the general public once they are sealed or expunged. Persons who successfully get their criminal records expunged/sealed can legally declare under oath that they did not commit the expunged crime if asked about it.

How to Seal a Criminal Record in New Mexico

The new CREA requires that criminal records be limited to the public. According to the expungement law, record sealing is available to:

• Individuals who were not convicted in the criminal court
• Individuals with minor crimes, such as misdemeanors and violations of ordinances

Below are the requirements necessary before applying for record sealing:

• Individuals must complete their sentences, pay the fines, and all restitutions (when applicable). Applicants who are still under parole or probation cannot seek to have a criminal record expunged. Paroles or probation are regarded as active sentences.
• All potential applicants must not have been arrested or convicted of any serious crimes. Most importantly, the individual must not have any other crime on record after serving a sentence for the crime that is to be expunged, as offenders who repeat their offenses cannot get their criminal records expunged at all.
• The applicant must have waited for the stipulated period after completing the sentence. For non-convicted record holders, the waiting period is one year (after disposition), while felony convictions (first degree) or convictions recorded under House Bill 497 (domestic violence) must wait for a minimum of 10 years after the sentence.

After the sentence, the person must then await the court to select a date and time. However, identity theft criminal record-holders can apply immediately after they have completed their sentence.

Eligible applicants must select and fill out the proper application form. Individuals should petition the district court where the person was convicted (for documents that were convicted) and hand notice of the application to both the arresting body and the district attorney. Courts typically consider the following before giving a verdict on the petition for expungement:

• the severity and nature of the committed crime
• the age of the applicant, as well as that person’s criminal and employment history
• the time elapsed since the crime was perpetrated, and also the completion of the sentence
• The actual consequences the applicant may face if the petition is denied
• All reasons were given by the district attorney to deny the petition for expungement

Interested persons should also remember to send their application forms along with documents such as:

• A certified statement proving the applicant’s eligibility for expungement,
• Documentation of the petitioners' older petitions for expungement (where applicable), as well as the outcome
• Documentation of the applicant’s pending criminal charges (where applicable)

What Crimes Can Be Expunged in New Mexico?

Expunging a record refers to the complete destruction or removal of the file from the central repository. Although expunging a record is available in rare cases, the process is difficult and almost impossible. In New Mexico, a criminal record may be expunged if:

• The case involves an individual arrested due to mistaken identity
• It is a juvenile case

How to Expunge Criminal Records in New Mexico

In New Mexico, eligible parties may be able to petition to have their criminal records expunged from the public records. As stated under the New Mexico law (§ 32A–2–26), the court can, on behalf of or on a motion from a young person’s (that is, under 18) representative, expunge that person’s record if:

• Two years have passed since that individual was finally released from either supervision or custody
• Two years have passed since another verdict was given on the case
• The young person was not discovered by a court to be delinquent (within the past two years), and there’s no pending court hearing. Or has yet to be convicted of either a misdemeanor or a felony.
• The court decides that there’s a good reason to expunge the criminal records before that person turns 18 years old.

Do Sealed Records Show up In New Mexico Background Checks?

No, sealed New Mexico criminal history records are not available in background checks. As stated under § 30–52–1.2(D), inspecting the documents or the release of expunged parts of the records included in an expungement order is typically allowed when a subsequent order, having a good cause, is given. Even then, the documents can only be accessible after all parties involved in the original petition have been notified.

Can a Felony Be Expunged in New Mexico?

In New Mexico, expunging a felony record protects the offender's reputation, opens up opportunities for employment, education, and accommodation, and gives them the privilege of a fresh start. Under NMSA § 29-3A-7, some felony records may be expunged, while others cannot. When conviction records are expunged under this statute, they are treated as if they never occurred.

Some eligibility conditions for an expungement in New Mexico include:

• For a fourth-degree felony, the individual must wait four years after completing the terms of their sentence
• For a third-degree felony, the individual must wait six years after completing the terms of their sentence
• For a second-degree felony, the individual must wait eight years after completing the terms of their sentence.
• For a first-degree felony, the individual must wait ten years after completing the terms of their sentence.
• The individual must be free of crime during the waiting period
• The offender must not have any pending criminal charges
• The felony conviction was not for a violent crime such as murder, manslaughter, or sexual assault.

To begin the expungement process, the applicant must file an application with the district court where the case was heard, providing evidence of rehabilitation, their criminal record, and other supporting documents. They must notify the relevant parties, including the prosecutor. The court may schedule a hearing if the prosecutor objects to the expungement.

Who Can See Sealed Criminal Records in New Mexico?

In New Mexico, authorized parties such as law enforcement agents and court officials may still access sealed criminal records. However, such entities can access criminal records only when they pertain to public security issues and such matters. The record holder may also request access to the sealed record. Typically, all sealed records may be accessible to persons who are granted a court order.

How Can I Get My Record Expunged for Free in New Mexico?

There are costs associated with the expungement process, which vary depending on the charges to be expunged, the case outcome, and whether the applicant qualifies for waivers. The applicant must pay the $132 filing fee and the $15 cost of conducting a background check through the New Mexico Department of Public Safety. Hiring a lawyer is an added cost, which could be from $500 to $2,500 (depending on the complexity of the case). There are also minimal fees for copying files, record retrieval, and administrative charges.

Applicants with financial constraints may be eligible for waivers from the court. They are required to fill out and submit the financial affidavit of indigency form. Also, the courts offer self-help resources that may be useful in filling out and preparing documents accurately. Moreover, the State Bar of New Mexico provides pro bono programs through its foundation, as part of its initiatives for inclusive legal services to support low-income citizens. Petitioners may take advantage of this and other legal aid opportunities.

Typically, expungement petitions in New Mexico contain the following information:

• The petitioner’s full name and any aliases
• Petitioner’s contact information
• Social Security Number
• Case number
• Case disposition
• Court of conviction
• Charges to be expunged

How to Obtain Sealed Records in New Mexico

For residents in New Mexico to access a sealed criminal record, interested persons should petition the court to seek a court order to view the file. The petition should state in clear terms the reasons for seeking the documents; then, the courts would determine if it’s a good cause or not. Interested persons can, however, request to view their criminal files at the Clerk of Court’s office that has jurisdiction in the place where the crime was committed. Alternatively, individuals can fill out an online request form to gain access to criminal records.

Records that are considered public may be accessible from some third-party websites. Operating independently of any federal, state, or local agency, such websites may simplify the search process as they are not limited by geographic location. In addition, third-party sites typically have search engines that can be used for filtering specific or multiple records. To use third-party or government websites, interested parties may need to provide:

• The name of the person involved in the record, unless said person is a juvenile
• The location or assumed location of the record or person involved. This includes information such as the city, county, or state that the person resides in or was accused in

However, third-party sites are independent of government sources and are not sponsored by these government agencies. Because of this, record availability cannot be guaranteed.