Felonies, Misdemeanors, And Infractions in New Mexico

The New Mexico criminal justice system categorizes crimes into three broad classes:

• Felonies
• Misdemeanors
• Petty misdemeanors.

These categories have penalties based on their levels of severity per the New Mexico Penal Code. The state's criminal courts handle criminal cases according to their classifications. Interested individuals can obtain New Mexico criminal court records from courts that handled the specific cases. In addition to record types, New Mexico statutes of limitations determine the time prosecutors have to bring charges in the state.

What Is a Felony In New Mexico?

In New Mexico, a felony is defined as a class of criminal offenses that result in 1 year to life imprisonment in a state prison. Felonies are more serious crimes than misdemeanors and typically result in more severe penalties and stiffer fines. Under Chapter 30, Article 1-7 of the New Mexico Statutes, felonies are categorized into five classes:

• Capital felony
• First-degree felony
• Second-degree felony
• Third-degree felony
• Fourth-degree felony.

Capital felonies are the most severe offenses under New Mexico's penal system, including crimes such as murder and aggravated criminal sexual penetration. Contrary to the name, the penalty for capital felony in New Mexico is life imprisonment with or without the possibility of parole. New Mexico abolished the death sentence in 2009. However, offenders convicted before this period may still be eligible for the death sentence.

First-degree felonies refer to criminal offenses that are punishable by up to 18 years imprisonment and fines that can range up to $17,500. These include crimes such as criminal sexual penetration of a minor and kidnapping.

Second-degree felonies encompass crimes whose penalties may include up to 9 years in prison, in addition to fines ranging up to $12,500.00. Examples of second-degree felonies are robbery and drug trafficking.

Third-degree felonies are crimes that may result in up to 3 years imprisonment, in addition to up to $5,000 fine upon conviction.

Fourth-degree felonies are the least severe under New Mexico's felony classification. This includes crimes such as burglary and involuntary manslaughter. Fourth-degree felonies are punishable with up to 18 months imprisonment and potential fines of up to $5,000.00.

New Mexico classifies any crime legally designated as a felony, but without a specified class as a fourth-degree felony. Furthermore, certain less severe felonies may be reclassified and elevated to more severe felony classes upon second or repeat offenses. For instance, stalking, which is typically a fourth-degree felony, may be reclassified as a third-degree felony upon repeat violations.

What Are Some Examples Of Felonies in New Mexico?

In New Mexico, felony classes describe the seriousness of the offense.
Examples of criminal violations that constitute felonies in the state of New Mexico include:

Capital felony:

• Premeditated murder
• Aggravated criminal sexual penetration
• Murder by a depraved/insane mind
• Felony murder (murder during the attempted or actual perpetration of a felony)

First-degree felony

• Criminal sexual penetration of a minor
• Kidnapping.
• Armed robbery (with a deadly weapon)
• Manslaughter

Second-degree felony

• Simple robbery
• Drug trafficking.
• Sexual exploitation of a minor (manufacture of child pornography)
• Shooting incidents at or from vehicles

Third-degree felony

• Aggravated stalking
• Aggravated assault and battery
• Transmission of pornography
• Voluntary ("heat of passion") manslaughter

Fourth-degree felony

• Burglary
• Involuntary manslaughter.
• Graffiti (with property damage over $1,000),
• Shoplifting items (valued between $500 and $2,500)

Can I get a Felony Removed from a Court Record in New Mexico?

Before the enactment of the New Mexico Criminal Record Expungement Act (CREA) (N.M. Stat. Ann. § 29-3A-1 et seq.), New Mexico law did not permit the expungement of felonies except in limited cases. Since the law took effect on January 1, 2020, some felony records are now eligible for expungement. Under the expungement law, New Mexico courts may expunge first-time non-violent felony records that relate to:

• Property crimes such as larceny-theft and burglary
• Drug possession (non-trafficking)
• Forgery or fraud (minor cases)
• Embezzlement (small-scale)
• Felonies charges resulting in dismissal or acquittal
• Non prosequi cases
• Juvenile felony adjudications.

Owners of eligible felony records may file a petition for expungement at the district court that handled their cases. However, petitioners are required to notify the public prosecutor responsible for their cases (District Attorney), the New Mexico Department of Public Safety (NMDPS), and the arresting agency. These agencies have the statutory right to object to criminal records expungement if there is evidence that the petitioner poses a danger to public safety.
As a requirement for removing felony records in New Mexico, intending petitioners must observe the applicable waiting periods for their crimes and not have any new convictions or pending criminal charges within these waiting periods.

Is Expungement The Same As Sealing Court Records In New Mexico?

No, expungement and sealing are not the same in New Mexico. Although expungement and sealing achieve similar objectives, they are distinct processes.
Per § 29-3A-1 et seq. of the New Mexico Statutes Annotated, expungement refers to the removal of records of arrests, charges, and convictions from public access and official databases. During this process, the documents are destroyed and treated as if the offense never occurred. Owners of expunged felony records can officially claim that they were never convicted.

Similarly, sealing of felony records in New Mexico also restricted public access to the documents. However, unlike expungement, sealed records are still accessible to law enforcement, the courts, and authorized agencies.

Furthermore, expungement in New Mexico applies to arrests, charges, and some conviction records, while sealing is for non-conviction or juvenile cases.

How Long Does a Felony Stay on Your Record in New Mexico?

A felony conviction in New Mexico can stay permanently on the owner's record. However, the New Mexico Criminal Record Expungement Act grants individuals the right to petition the courts to expunge eligible criminal records (including felonies). Individuals intending to remove their felony records in New Mexico are required to observe the applicable waiting periods for their crimes before applying for expungement. Additionally, New Mexico does not allow the expunction of felony records that relate to:

• Violent crimes
• Sexual offenses
• Crimes against children or vulnerable adults
• Driving under the influence (DUI/DWI)
• Any offense requiring sex offender registration.

What is a Misdemeanor in New Mexico?

Misdemeanors refer to criminal offenses that are less serious than felonies. An individual convicted of a misdemeanor in New Mexico may be sentenced to between six months and one year in prison, in addition to a fine of up to $1,000. The differences between misdemeanors and felonies in New Mexico are based on the severity of the injuries to victims, the quantity of drugs in the offender’s possession and intent to sell or circulate, and the extent of property damage.

New Mexico also classifies some offenses as Petty misdemeanors. These are the least serious of New Mexico criminal offenses. Petty misdemeanors are punishable by up to 6 months imprisonment, fines of no more than $500.00, or both.

What are some examples of Misdemeanors in New Mexico?

In New Mexico, misdemeanors refer to crimes that are less serious than felonies but more severe than petty misdemeanors. These offenses result in up to 1 year imprisonment and fines of up to $1,000.00. Examples of misdemeanors in New Mexico include:

• Simple assault
• Battery
• Domestic battery (first offense)
• Harassment
• Shoplifting (for amounts under $500.00)
• Trespassing
• Receiving Stolen Property (worth under $500)
• Possession of drug paraphernalia
• Driving While Intoxicated (DWI) (first offense)
• Disorderly conduct
• Public intoxication
• Resisting, evading, or obstructing an officer
• Prostitution or solicitation
• Carrying a concealed weapon (without a permit)
• Littering.

Can I Get a Misdemeanor Removed from a Record in New Mexico?

Yes, the New Mexico Criminal Record Expungement Act allows the removal of misdemeanor convictions from records. However, expungement is not automatic, and not all misdemeanor records are eligible.
In New Mexico, a misdemeanor conviction may be expungeable if the owner of the record completes the sentence for the crime (including probation if applicable), observes a 2-year waiting period, and has no new convictions or pending criminal charges within this period.
A misdemeanor in New Mexico may qualify for expungement if it relates to:

• Non-violent criminal cases
• Drug possession (minor quantities)
• Property-related offenses
• Public order misconduct
• Dismissed or acquitted cases
• Nolle prosequi or a no bill.

Can a DWI Be Expunged in New Mexico?

No, New Mexico does not allow the expunction of Driving While Intoxicated (DWI) records. Chapter 29, § 3A-3(B) of the New Mexico Statute Annotated explicitly excludes DWI from the list of expungeable records. Nonetheless, individuals can expunge DWI information from their records if the courts dismiss or acquit the charges against them or they complete deferred or conditional discharge programs.

What Constitutes An Infraction In New Mexico?

New Mexico refers to infractions as petty offenses or violations. These are the lowest-level offenses within the state. Infractions or petty offenses are non-criminal offenses, and their penalties do not include prison terms. The penalties for infractions in New Mexico include:

• Fines ranging between $10.00 and $300.00
• Court and administrative processing fees
• Points on driving records
• Suspension or restriction of a license or permit
• Community service or require attendance at a defensive driving class.

What Are Some Examples Of Infractions In New Mexico?

In New Mexico, infractions are minor offenses that do not result in prison terms or criminal records. Examples of traffic infractions in New Mexico include:

Traffic Infractions

• Tailgating
• Failure to yield to an emergency vehicle
• Using the wrong turn signal
• Driving with defective brakes
• Seatbelt and child restraint violations
• Speeding
• Overloaded vehicles
• Failure to obey a stop sign
• Failure to obey a traffic signal

Local ordinance infractions

• Littering
• Unsecured trash, overgrown weeds, or debris
• Failure to leash pet; animal waste violations
• Smoking in prohibited public spaces
• Noise violation

Environmental and regulatory infractions

• Burning trash without a permit
• Watering during restrictions
• Dumping yard waste in public space.

Can Infractions be Expunged from New Mexico Criminal Court Records?

Yes, New Mexico allows the expungement of Infractions if they appear as part of criminal records. Under New Mexico's Criminal Record Expungement Act, individuals can petition for the expunction of their infractions that are part of public records. Beyond this, most infractions do not result in criminal convictions and do not require expunction.

What is Deferred Adjudication in New Mexico?

New Mexico refers to deferred adjudication as a Deferred Sentence. Deferred Sentence in New Mexico is a legal procedure that allows defendants to avoid sentencing for offenses if they complete probation or court-ordered programs.
§ 31-20-3 of the New Mexico Statutes Annotated gives courts the authority to suspend sentencing on eligible offenses and place the offenders on probation or court-ordered programs for a specified period. After the defendant completes these programs, § 31-20-13 of the New Mexico Statutes Annotated empowers the court to dismiss the charges.

Types of Crimes Eligible for Deferred Adjudication in New Mexico

New Mexico does not approve deferred adjudication (Deferred Sentence) for all offenses. In New Mexico, a Deferred Sentence applies to first-time non-violent low-level offenses. Crimes that are eligible for New Mexico Deferred Sentence include:

• Shoplifting/larceny (low value)
• Drug possession (small amounts)
• Criminal damage to property (minor)
• Embezzlement (low value)
• Forgery (low amount)
• Non-aggravated dimple assault
• Receiving low-value stolen property
• Attempted trespassing/burglary on non-residential property
• Possession of drug paraphernalia
• Harassment/disorderly conduct (minor)
• Non-DWI Traffic-related misdemeanors.