Expungement / Record Sealing Petition and Eligibility Memo — New Mexico

Expungement Eligibility Memo and Official-Form Drafting Worksheet — New Mexico

Mandatory-form notice: Do not file this document as a petition. Rule 1-077.1(M) NMRA requires Forms 4-951 through 4-960.3, as applicable. Use this memo to analyze eligibility and prepare accurate entries for the current official forms.

Part A — Eligibility Memorandum

To: [CLIENT NAME]

From: [ATTORNEY NAME / FIRM]

Date: [__/__/____]

Re: New Mexico criminal-record expungement eligibility

1. Questions Presented

1. Which route under the Criminal Record Expungement Act applies to each record?
2. Has every route-specific condition and waiting period been met?
3. Which official forms, supporting records, service steps, and hearing procedures apply?

2. Record Inventory

Rule 1-077.1(B)(5) permits one petition to cover multiple arrests, charges filed without arrest, or convictions within a single judicial district. Separate judicial districts require separate proceedings.

3. Route Analysis

A. Identity Theft — NMSA 1978, § 29-3A-3; Form 4-951

The identity-theft route applies when a person is wrongfully identified in arrest records or public records because of identity theft.

• ☐ The records identify the client as the result of identity theft.
• ☐ Supporting records establish the mistaken identity.
• ☐ Venue is a district court in the county where the charges originated, arrest occurred, or conviction was entered. Rule 1-077.1(B)(1).

Conclusion: [ELIGIBLE / NOT ELIGIBLE / ADDITIONAL FACTS REQUIRED], because [________________________________].

B. Release Without Conviction — NMSA 1978, § 29-3A-4; Form 4-952

The client may petition one year after final disposition when released without conviction. Qualifying outcomes include an acquittal or not-guilty finding, nolle prosequi, no bill or other dismissal, referral to preprosecution diversion, conditional discharge under NMSA 1978, § 31-20-13, or another discharge.

• ☐ One year has elapsed since final disposition.
• ☐ No other charge or proceeding is pending against the client.
• ☐ Venue is a district court in the county where the charge originated or arrest occurred. Rule 1-077.1(B)(2).
• ☐ The petition will be filed under seal under Rule 1-077.1(C) and Rule 1-079 NMRA.
• ☐ A DPS RAP sheet dated no more than 90 days before filing is available.

Conclusion: [ELIGIBLE / NOT ELIGIBLE / ADDITIONAL FACTS REQUIRED], because [________________________________].

C. Conviction — NMSA 1978, § 29-3A-5; Form 4-953

Threshold conditions — § 29-3A-5(A), (C), and (F)

• ☐ The sentence for each conviction to be expunged is complete.
• ☐ All fines and fees owed to the state for each conviction are paid.
• ☐ All court-ordered victim restitution is fulfilled.
• ☐ No other charge or proceeding is pending.
• ☐ No criminal conviction occurred during the applicable period, measured from the last date the client completed a sentence for a conviction in any jurisdiction.

Applicable period and calculation: [________________________________]

Categorical exclusions — § 29-3A-5(G)

• ☐ The conviction was not for an offense committed against a child.
• ☐ The conviction was not for an offense that caused great bodily harm or death.
• ☐ The conviction was not for a sex offense as defined in § 29-11A-3.
• ☐ The conviction was not for embezzlement under § 30-16-8.
• ☐ The conviction did not involve driving under the influence of intoxicating liquor or drugs.

Justice factors — § 29-3A-5(E)

The court considers:

1. The nature and gravity of the offense or conduct.
2. The client's age, criminal history, and employment history.
3. The time since the offense and completion of the related sentence.
4. The specific adverse consequences if the petition is denied.
5. Reasons for denial submitted by the district attorney.

Case-specific analysis: [________________________________]

• ☐ Venue is the district court in the county where the conviction was entered. Rule 1-077.1(B)(3).
• ☐ DPS and FBI RAP sheets, each dated no more than 90 days before filing, are available.

Conclusion: [ELIGIBLE / NOT ELIGIBLE / ADDITIONAL FACTS REQUIRED], because [________________________________].

D. Eligible Cannabis Records — NMSA 1978, § 29-3A-8

Current § 29-3A-8 distinguishes two record types:

• Records involving only cannabis or cannabis-paraphernalia charges are automatically expunged after the statutory period and must be destroyed.
• For a mixed cannabis and non-cannabis record, the person may request expungement of eligible cannabis charges through the confidential AOC procedure.

The AOC must provide a way to verify whether automatic expungement occurred and request expedited automatic expungement if it did not. Confirm the current AOC procedure and whether a court filing or Form 4-954 is presently appropriate before proceeding.

Conclusion: [AUTOMATIC PROCESS / AOC REQUEST / OTHER COUNSEL REVIEW], because [________________________________].

4. Effect and Limits of Relief

NMSA 1978, § 29-3A-7 provides that, after entry of an order, the proceedings are treated as if they never occurred, and officials and the person receiving the order may respond that no record exists. The statute preserves disclosure in connection with an application for or query about employment or association with a financial institution regulated by FINRA or the SEC.

Court-issued guidance states that criminal-justice agencies retain access, records may remain available for future criminal proceedings, and the district court cannot expunge records held by another state or the federal government.

5. Recommendation

I recommend [FILING / NOT FILING / OBTAINING ADDITIONAL RECORDS] under [§ 29-3A-3 / § 29-3A-4 / § 29-3A-5 / § 29-3A-8]. The appropriate next step is [________________________________].

Part B — Official-Form Drafting Worksheet

1. Select the Mandatory Initial Form

• ☐ Form 4-951 — identity theft.
• ☐ Form 4-952 — release without conviction.
• ☐ Form 4-953 — conviction.
• ☐ Current AOC procedure or Form 4-954, if confirmed for the § 29-3A-8 matter.

Official-form version date checked: [__/__/____]

2. Entries for the Official Form

• Petitioner's full legal name and aliases: [________________________________]
• Date of birth: [__/__/____]
• Mailing address, telephone, and email: [________________________________]
• Pending expungement cases in this district: [________________________________]
• Earlier denied expungement petitions: [________________________________]
• District, metropolitan, magistrate, or municipal case numbers: [________________________________]
• Agency case and arrest numbers: [________________________________]
• Date of arrest or offense: [__/__/____]
• Offense name and statute or ordinance number: [________________________________]
• Degree of offense: [________________________________]
• Final disposition and date: [________________________________]
• Date sentence completed: [__/__/____]
• Date fines and fees were paid: [__/__/____]
• Date restitution was completed: [__/__/____]
• Related or joined cases: [________________________________]
• Courts and agencies holding covered records: [________________________________]
• Facts supporting the justice factors, if applicable: [________________________________]
• Request for telephonic or electronic hearing appearance: [YES / NO]

3. Required and Supporting Attachments

• ☐ DPS RAP sheet dated within 90 days for a non-conviction petition.
• ☐ DPS and FBI RAP sheets dated within 90 days for a conviction petition.
• ☐ Docket, arrest, charging, and disposition records.
• ☐ Proof of completed sentences for the target convictions and any other convictions relevant to the waiting-period calculation.
• ☐ Proof that fines, fees, and restitution are complete.
• ☐ Additional documents supporting the justice factors.

For a non-conviction petition, an objecting party relying on an FBI RAP sheet must give the petitioner a copy at no charge when filing the objection. Rule 1-077.1(G)(2).

4. Service

Serve the filed petition and all attachments by first-class United States mail, then file the applicable certificate of service.

• ☐ Addresses confirmed from current official sources.
• ☐ First-class mailing completed on [__/__/____].
• ☐ Certificate of service filed.

Do not add victim service or service on every record custodian without current authority or a court order.

5. Response, Briefing, Hearing, and Order

• ☐ Calendar 60 days from service for objections on Form 4-957 or notices of non-objection on Form 4-958. Rule 1-077.1(G).
• ☐ After that period, file Form 4-959 for release without conviction or Form 4-960 for conviction. Rule 1-077.1(H).
• ☐ Attach Form 4-960.2 for release without conviction or Form 4-960.3 for conviction.
• ☐ If the affirmation reports later arrests, charges, or convictions, calendar 20 days after service for additional objections.
• ☐ Do not request a merits hearing before filing and serving the notice of completion of briefing.
• ☐ Prepare for the required conviction-expungement hearing. An unopposed identity-theft or non-conviction petition may be decided on the pleadings.
• ☐ If a hearing occurs, calendar the court's 60-day order period. The order must allow at least 60 days for completion, and court records cannot be expunged earlier than 30 days after entry. Rule 1-077.1(K).

6. Signature and Proposed Order

Use the official form's affirmation under penalty of perjury. Do not replace it with a notarial block unless the court orders otherwise.

The proposed order should identify every covered case and charge and the relevant agencies and courts. Rule 1-077.1(L) requires a granted order to prohibit release except as authorized by the Criminal Record Expungement Act or court order.

Sources and References

• 2019 Criminal Record Expungement Act, Laws 2019, ch. 203 (HB 370)
• 2021 amendment, Laws 2021 (1st S.S.), ch. 3 (SB 2)
• 2023 amendment to § 29-3A-8, Laws 2023, ch. 74 (HB 314)
• Rule 1-077.1 NMRA and court-issued expungement packet
• Court-issued conviction filing instructions
• Court-issued non-conviction filing instructions
• Official Form 4-951 — identity theft
• Official Form 4-952 — release without conviction
• Official Form 4-953 — conviction