What is a criminal record?

70 million adults in the U.S. – about 1 in 3 Americans – has a criminal record that will show up on a routine background check. Convictions, dismissals, even mere arrests are public record and generally remain a public record unless they are somehow removed.

What is expungement?

In New Mexico, expunged records are removed from public view and are no longer reported on background checks. A person whose record is expunged may answer “no” when asked if they have ever been arrested or convicted. District Attorneys and certain employers requiring security clearance may still have access to expunged records.

How will expungement help me?

The American Bar Association estimates there are 48,000 ways a person can be affected by a criminal record in the U.S. These “collateral consequences” include housing, employment, occupational licenses, immigration, and many others.

What is eligible to be expunged?

Misdemeanor and felony dismissals, acquittals, and convictions with certain exceptions.

What are the exceptions?

Convictions for the following offenses are not eligible for expungement: DWI, Embezzlement, Sex Crimes (requiring registration), Crimes Against Children, and Violent Offenses resulting in Great Bodily Harm or Death of Another.

Can the ACLU help me expunge my record?

The ACLU of New Mexico is unable to provide legal assistance for expungement of criminal records.

Am I required to have a lawyer to expunge my record?

No.

What if I need help with my expungement?

The ACLU cannot recommend specific lawyers for legal assistance, however you may visit the New Mexico State Bar website at nmbar.org for a list of attorneys that may provide legal assistance.

What if I can’t afford a lawyer? 

If you cannot afford an attorney, there may be legal assistance available. The District Court in your area may have a self-help desk that provides assistance with completing forms and you can learn more by visiting nmcourts.gov. In addition, the Volunteer Attorney Program through New Mexico Legal Aid and the State Bar of New Mexico may be able to connect you with legal services in your area. To learn more, visit https://www.vapnm.org/.

Where can I find the forms to get started?  

The New Mexico Courts website has forms and instructions that may be downloaded depending on the type of case you seek to expunge. To learn more, visit https://nmcourts.gov/expungement-forms.aspx. In the Second Judicial District (Bernalillo County), you may download forms and instructions specific to that district by visiting https://seconddistrictcourt.nmcourts.gov/civil-forms.aspx.

When can I apply?

Type of Record  Waiting Period
Identity Theft. Immediate.
Non-convictions (felony or misdemeanor) including conditional discharge, pre-prosecution diversion, nolle, acquittals, etc. One year from date of final disposition. 
Municipal ordinance or misdemeanor convictions. Two years from end of sentence.
Misdemeanor aggravated battery or 4th degree felony convictions. Four years from end of sentence.
3rd degree felony convictions. Six years from end of sentence.
2nd degree felony convictions. Eight years from end of sentence.
1st degree felony convictions or a conviction under the Crimes Against Household Members Act.

Ten years from end of sentence.

How do I know what is on my background?

You may obtain your criminal background from several different sources, although the courts may require a specific type of background check for expungement purposes.

Are petitions to expunge public information?

As of January 2020, a petition to expunge is considered a matter of public record unless the petition is sealed. New Mexico Supreme Court Rule 5-123 allows District Courts to seal records and a request to seal records should be made at the time of filing the petition to expunge if you would like the petition itself to be sealed from public view.

Will this affect my gun rights?

An expunged conviction in New Mexico will still appear on the National Crime Information Center (NCIC) background check for federal firearms purchases.

Does expungement remove online records?

In New Mexico, and expunged record will be removed from publicly available online sources such as the New Mexico Courts website. Online news reports or other unregulated sources available online cannot be expunged.

May I expunge federal court records?

Federal conviction records may not be expunged. In order to apply for a pardon, visit https://www.justice.gov/pardon/pardon-information-and-instructions.

 

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