Felonies, Misdemeanors, and Infractions in New Mexico

The Criminal Justice System of New Mexico State categorizes crimes into three broad classes:

• Felonies 
• Misdemeanors 
• Petty misdemeanors

These categories have matching penalties based upon their levels of severity in compliance with the New Mexico Penal code. The state's criminal courts in New Mexico handle criminal cases, and individuals interested in obtaining New Mexico criminal court records from a specific hearing location can make a request directly to the court.

What is a felony in New Mexico?

Felonies in the state of New Mexico refer to a class of criminal offenses that fetch legal punishments ranging from at least one year in state prison to life imprisonment. They are graver than misdemeanors and impose heavier penalties and stiffer fines for their violations.. Felonies are divided into five subcategories in the state of New Mexico and they are:

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

Capital felonies are the severest type of felonies and include premeditated murder as well as aggravated criminal sexual penetration. The penalty for capital felony is a sentence of life imprisonment in a state correctional facility with or without the possibility of parole.

First degree felony refers to criminal offenses that are punishable by an incarceration sentence of up to eighteen years and a fine of $17,500 upon conviction. They include crimes like criminal sexual penetration of a minor and kidnapping.

Second degree felonies include crimes which attract legal penalties of up to nine years imprisonment and $12,500 in fines upon conviction. Examples of second degree felonies are robbery and drug trafficking.

Third degree felonies are crimes which attract legal penalties of up to three years imprisonment and $5,000 in fines upon conviction. Stalking and aggravated battery are examples of third degree felony in the state of New Mexico.

Fourth degree felonies are the least severe of all the felonies and they are punishable by a sentence of up to eighteen months in prison and $5,000 in fines. They include crimes like burglary and involuntary manslaughter. 

Any crime legally designated as a felony but without any specified degree of felony is classed as a fourth degree felony. 

Certain less severe felonies can, on second or repeat violations or offenses, be reclassified as more severe felonies. For instance, stalking which is a typically a fourth degree felony, can be reclassified as a third degree felony upon repeat violations.

What are some examples of felonies in New Mexico?

Examples of criminal violations which constitute felonies in the state of New Mexico include the following:

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?

Prior to the enactment of the Criminal Record Expungement Act (CREA), felonies were not eligible for expungement in New Mexico except in limited cases. Since it came into effect on January  1, 2020, the following categories for felonies can now be expunged:

• Felony records containing information of court proceedings that did not result in a conviction including:
  • Dismissal of charges 
  • Discharged proceedings 
  • A nolle prosequi or a no bill
  • A pre-prosecution referral to diversion 
  • An order of conditional discharge or 
  • An acquittal.
• Felony conviction records for which the conditions of the individual’s sentence and payment of all required court fines and fees has been satisfied.

 The convicted individual may file a petition for expungement at the district court in which the individual’s conviction occurred. He or she is expected to notify the following parties of the filed petition:

• The district attorney in charge of that district

• The public safety department   

• The law enforcement agency that executed the arrest of the individual.

 This notice grants any of the specified parties an opportunity to forward any objection to the district court regarding the expungement petition. Following the hearing on the petition, the court issues an order directing all arrest and public records associated with the conviction to be expunged. This order by the court is issued within thirty days of the hearing and only after the court has established that:  

• The convicted individual has no other ongoing prosecution or charges against him or her

• An expungement order will serve the interest of justice (in the case of a dismissal or no filed charge)

• The convicted individual has had no other criminal conviction for the legal designated waiting period stipulated for his or her felony

The legal designated waiting period refers to the recommended time an individual convicted of felony (or misdemeanor) must wait before filing a petition for expungement. The court determines the waiting time by counting from the last date of sentence completion. The following are the waiting periods for different degrees of felony in New Mexico

• Four years for a fourth degree felony conviction

• Six years for a third degree felony conviction

• Eight years for a second degree felony conviction

• Ten years for a first degree felony conviction (or for any offense listed in the Crimes Against Household Members Act) 

The court weighs a number of factors to determine whether or not justice will be served by granting an order for expungement such as:

• The severity and nature of the crime or behavior that led to the individual’s conviction

• The age, criminal history and employment history of the convicted individual

• The time period between the commission of the crime and the sentence completion

• The exact negative conditions or outcomes the convicted individual may experience on denial of his or her petition

• Any objection against the petition for expungement submitted by the district attorney and other notified parties. 

Following the granting of an order for expungement, the court directs for copies of the order to be sent to all relevant law enforcement agencies and courts. This order bars law enforcement agencies and courts from disclosing copies of subject records except by order of the court.

Other categories of records eligible for expungement include:

• Records containing information on wrongful arrest and indictment or of mistaken identity resulting from identity theft.  
• Records containing dismissed charges for a first-time drug offender and who has been discharged after satisfying his or her probation terms (§ 30-31-28.)
• Criminal records containing information of court proceedings that did not result in a conviction. These court proceedings may include:
  • Dismissal of charges 
  • Discharged proceedings 
  • A nolle prosequi or a no bill
  • A pre-prosecution referral to diversion 
  • An order of conditional discharge or 
  • An acquittal
• Arrest records for misdemeanor or petty misdemeanor offense not involving moral turpitude and for which a final disposition is unavailable.
• Reversed conviction records containing samples and DNA of the defendant in the DNA identification system.

Records that are exempted from expungement in the state of New Mexico include:

• Crimes perpetrated against children
• Sex crimes (Section 29-11A-3 NMSA 1978)
• Crimes of moral turpitude like aggravated embezzlement
• Felonies that result in great bodily harm or death
• Crimes associated with DWI (Driving while under the influence of alcohol or drugs)

Is expungement the same as sealing court records in New Mexico?

In the state of New Mexico, expungement of records essentially involves the sealing of the subject records from public access. Related court proceedings are treated as if they never occurred and the official response to any inquiry is that no records exist. 

Criminal Records Expungement Act (CREA) defines expungement as “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”. 

The only records that are actually truly destroyed (expunged) are DNA records and samples as well as criminal records of a first time drug offender under the age of eighteen years. For all other expunged records, they can still be accessed upon an order of the court (§ 10.14.200.12,  § 32A-3B-21).

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

 A felony can stay on a convicted individual’s criminal history records for a lifetime in the state of New Mexico. Felonies will, however, not remain on a convicted individual’s record for the whole of his or her life if they have already been expunged or sealed. According to the state’s new expungement law, filed petitions for the expungement of felonies can only be done when:

• The convicted individual’s sentence has been completed
• All related court fines and fees must have been paid
• The legal conviction-free waiting period has been maintained (usually ranging from four to ten years)

However, not all felonies are eligible for expungement in state of New Mexico.These ineligible felonies include those involving a child, embezzlement, sex, serious bodily harm or death, or DWI.

What is a Misdemeanor in New Mexico?

Misdemeanors refers to crimes of less gravity than felonies, although they still rank higher than petty misdemeanors. An individual convicted of a misdemeanor in New Mexico, is liable to face a prison sentence of between six months and one year, a fine of $1,000 or both. Misdemeanors typically differ from felonies on the basis of the severity of the injury sustained by the other party or the quantity of drugs possessed. The worth of property lost in cash and the presence or absence of intent to sell or circulate drugs are also distinguishing factors.   

Petty misdemeanors are the least serious of New Mexico criminal offences. Crimes classified as petty crimes are punishable by a imprisonment sentence of up to six months, a fine of $500 or both.

What are some examples of Misdemeanors in New Mexico

 The following are examples of crimes that constitute misdemeanors in the state of New Mexico:

Misdemeanors

• Battery
• Public intoxication
• Trespassing
• Speeding
• Prostitution
• Vandalism
• Most DWI offenses
• Possession of marijuana
• Shoplifting (worth between $250 and $500)
• Trespassing

Petty misdemeanors 

• Simple battery
• Shoplifting items (worth less than $250)
• Graffiti (property damage worth less than $1,000)
• Disorderly conduct

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

New Mexico state law provides for the expungement or sealing of most misdemeanor and petty misdemeanor convictions. Misdemeanor records may be expunged if:

• The sentence has been completed
• All related court fines and fees have been duly remitted
• The stipulated conviction-free waiting period has elapsed (which ranges from two to four years).
• The arrest records for misdemeanor or petty misdemeanor offenses does not involve moral turpitude and no final disposition can be found.
• Records contain information on wrongful arrest and indictment or of mistaken identity that resulted from identity theft.  
• Records contain dismissed charges for a first-time drug offender and who has been discharged after satisfying his or her probation terms (§ 30-31-28.)
• Misdemeanor criminal records containing information of court proceedings that did not result in a conviction. These court proceedings may include:
  • Dismissal of charges 
  • Discharged proceedings 
  • A nolle prosequi or a no bill,
  • An order of conditional discharge or 
  • An acquittal, 
• Misdemeanor  conviction records that have been reversed and which contain DNA samples of the defendant in the DNA identification system.

An example of a misdemeanor that is not eligible for expungement and is thus exempt from removal is Driving While Intoxicated (DWI). Others include misdemeanors related to the child, sex, great bodily harm or death.

Can a DWI Be Expunged in New Mexico?

Driving While Intoxicated by alcohol or drugs cannot be expunged in the state of New Mexico. DWI is classified as one of the offenses ineligible for expungement by the state’s expungement law. A federal pardon may, however, be requested from the president. The governor of New Mexico does not grant requests for pardon to DWI offenders.

What constitutes an Infraction in New Mexico?

Traffic infractions, in the state of New Mexico, are typically offenses that contravene the state’s traffic laws as contained in the Motor Vehicle Code. They are the most common type of infraction in the state and carry the lowest degree of severity of all the offenses. They are commonly fine-only offenses that do not impose any jail terms upon conviction. In addition to the penalty of fines, they may also attract other punishments like court fees and license suspension or revocation. An example of a traffic infraction is running a red light.

What are some examples of Infractions in New Mexico?

Examples of traffic infractions in New Mexico include:

• Tailgating
• Failure to yield for an emergency vehicle
• Using the wrong turn signal
• Driving with defective brakes
• Seatbelt and child restraint violations
• Speeding
• Overloaded vehicles 
• Passing a school bus where children are boarding or exitingFailure to obey a stop sign
• Failure to obey a traffic signal
• Driving below the minimum speed

Examples of infractions include possession of up to a half-ounce of marijuana and possession of marijuana paraphernalia.

Can Infractions be Expunged from New Mexico Criminal Court Record?  

Infractions can be expunged in the state of New Mexico. Although they do not ordinarily constitute criminal offences, they still show up on background checks. The state’s laws provide for the expungement of infractions under the following conditions:

• All the conditions and terms of probation (if imposed) must have been satisfied.
• The legal waiting period of one year must have elapsed, barring probation  
• There must be no pending criminal charges
• All the conditions of parole must have been satisfied