Expungement / Record Sealing Petition and Eligibility Memo — New Mexico

Expungement / Record Sealing Petition and Eligibility Memo (NEW MEXICO)

Quick-Reference Summary

Part A — Eligibility Memo

TO: [CLIENT NAME]
FROM: [ATTORNEY NAME], [FIRM]
RE: Eligibility for Expungement Under the New Mexico Criminal Record Expungement Act
DATE: [__/__/____]

1. Statutory Framework

The Criminal Record Expungement Act, codified at NMSA 1978, §§ 29-3A-1 to 29-3A-9 (effective January 1, 2020), is the exclusive vehicle for petition-based expungement in New Mexico. The Act covers four categories of relief:

1. Identity-theft expungement (§ 29-3A-3): records arising from identity theft where the petitioner was wrongfully identified.
2. Non-conviction expungement (§ 29-3A-4): arrests not resulting in a conviction.
3. Conviction expungement (§ 29-3A-5): convictions for eligible offenses after the applicable waiting period.
4. Automatic cannabis expungement (§ 29-3A-8): offenses that are no longer crimes under the Cannabis Regulation Act.

Procedurally, petitions are governed by Rule 1-077.1 NMRA and Supreme Court Forms 4-951 through 4-954 NMRA. Non-conviction petitions are filed under seal subject to Rule 1-079 NMRA. Rule 1-077.1(B)(5) permits a single petition to address multiple arrests, charges, or convictions within a single judicial district.

2. Eligibility Analysis

A. Identity Theft (§ 29-3A-3)

• ☐ Petitioner was wrongfully identified in an arrest or public record because of identity theft (§ 30-16-24.1)?
• ☐ No waiting period; all offenses eligible.

B. Non-Conviction Records (§ 29-3A-4)

• ☐ Final disposition was: acquittal, no-bill, nolle prosequi, dismissal, completion of pre-prosecution diversion, conditional discharge, or deferred sentence under the Motor Vehicle Code?
• ☐ At least one (1) year has elapsed since final disposition?
• ☐ No charges currently pending in any state, tribal, or federal court?
• ☐ No unresolved arrests or releases in any jurisdiction?

C. Conviction Records (§ 29-3A-5)

Step 1 — Confirm the conviction is NOT categorically ineligible. A conviction is ineligible if it falls within § 29-3A-5(B):

• ☐ Offense committed against a child?
• ☐ Offense causing great bodily harm or death to another person?
• ☐ Sex offense as defined in NMSA § 29-11A-3 (SORNA)?
• ☐ Embezzlement under NMSA § 30-16-8?
• ☐ Driving while under the influence of intoxicating liquor or drugs?

If any box is checked, conviction expungement is not available.

Step 2 — Confirm waiting period and sentence completion. Per § 29-3A-5(A):

• ☐ Petitioner has completed sentence, including parole and probation?
• ☐ Petitioner has paid all fines, fees, and victim restitution?
• ☐ Petitioner has not been convicted of any other offense during the applicable waiting period in any jurisdiction (state, tribal, or federal)?
• ☐ No charges currently pending against petitioner?

Step 3 — Justice-of-the-case factors (§ 29-3A-5(D)). Court considers:

1. Nature and gravity of the offense;
2. Time since conviction;
3. Petitioner's history, character, and behavior since the conviction;
4. Adverse consequences the petitioner may suffer if expungement is denied;
5. Any objection from the district attorney, agency, or victim.

D. Automatic Cannabis Expungement (§ 29-3A-8)

• ☐ Offense involved cannabis and is no longer a crime under the Cannabis Regulation Act?
• ☐ Two (2) years have passed since date of arrest or conviction?
• ☐ If automatic expungement has not occurred, petitioner may file a petition with no filing fee.

3. Effect of Expungement (§ 29-3A-6)

Upon entry of an order, all arrest and public records related to the offense are sealed; the proceedings are treated as if they never occurred; and the petitioner and criminal-justice agencies may reply to inquiries that "no record exists." Caveats:

• The record is not destroyed and remains available for future criminal proceedings.
• The record will be disclosed to financial regulatory authorities if the petitioner applies to work for a bank or financial institution.
• Records held by tribal or federal authorities, even if located in New Mexico, are not subject to the Act.

4. Recommendation

Based on the foregoing, the undersigned [does / does not] recommend filing a petition for expungement under [§ 29-3A-3 / § 29-3A-4 / § 29-3A-5 / § 29-3A-8]. The proposed filing court is the [____] Judicial District Court for [____] County.

Part B — Petition Template

[____] JUDICIAL DISTRICT COURT
COUNTY OF [____], STATE OF NEW MEXICO

Case No.: [____________________]
Underlying Criminal Case No(s).: [____________________]

VERIFIED PETITION FOR EXPUNGEMENT OF [ARREST / CONVICTION] RECORDS PURSUANT TO NMSA 1978, § 29-3A-[3 / 4 / 5 / 8]

Petitioner [PETITIONER NAME], by and through undersigned counsel, respectfully petitions this Court for an order expunging arrest records and public records pursuant to the Criminal Record Expungement Act, NMSA 1978, §§ 29-3A-1 to 29-3A-9, and Rule 1-077.1 NMRA, and states as follows:

I. PETITIONER INFORMATION

1. Petitioner's full legal name: [____________________].
2. All other names or aliases used by Petitioner: [____________________].
3. Date of birth: [__/__/____].
4. Social Security number: [Last four: ____] (filed under seal pursuant to Rule 1-079 NMRA).
5. Current address: [____________________].
6. All addresses since the date of the offense: [____________________].

II. RECORDS SOUGHT TO BE EXPUNGED

7. Case number(s): [____________________].
8. Arresting agency: [____________________].
9. Date of arrest: [__/__/____].
10. Charged offense(s) and citation(s) to the New Mexico Statutes Annotated: [____________________].
11. Final disposition (and date): [____________________].
12. If conviction: degree of offense and date sentence (including probation/parole) was completed: [____________________].

III. STATUTORY ELIGIBILITY

13. The records sought to be expunged are not records held by a tribal or federal authority.
14. There are no criminal charges currently pending against Petitioner in any court of any state or in any tribal or federal court.
15. Petitioner has no unresolved arrests in any jurisdiction.
16. [For non-conviction petitions]: At least one (1) year has elapsed since the final disposition of the case identified above. NMSA § 29-3A-4(A).

17. [For conviction petitions]:
    a. Petitioner has completed the sentence imposed, including any term of parole and probation.
    b. Petitioner has paid all fines, fees, and victim restitution.
    c. The applicable waiting period of [2 / 4 / 6 / 8 / 10] years under NMSA § 29-3A-5(A)([__]) has elapsed since the date Petitioner completed the most recent sentence for any conviction in any jurisdiction.
    d. The conviction is not for an offense excluded under NMSA § 29-3A-5(B) (offenses against a child; great bodily harm or death; sex offenses under § 29-11A-3; embezzlement under § 30-16-8; DWI).

18. [For identity-theft petitions]: Petitioner was wrongfully identified in the arrest or public record because of identity theft as defined in NMSA § 30-16-24.1.

IV. INTEREST OF JUSTICE (Conviction Petitions — § 29-3A-5(D))

19. Justice will be served by expunging the records, taking into account: (a) the nature and gravity of the offense; (b) the time elapsed since the conviction; (c) Petitioner's behavior since the conviction, including [employment, education, community involvement, treatment, restitution]; and (d) the adverse consequences Petitioner will continue to suffer if the records remain public. Supporting facts: [____________________].

V. SUPPORTING DOCUMENTATION (Rule 1-077.1(B); Form 4-953/4-954)

20. Attached as exhibits and incorporated by reference:
    a. Exhibit A — DPS Record of Arrest and Prosecution (RAP) sheet dated no more than 90 days before filing.
    b. Exhibit B — FBI RAP sheet (conviction petitions) dated no more than 90 days before filing.
    c. Exhibit C — Criminal complaint, indictment, or information.
    d. Exhibit D — Judgment and sentence and/or dismissal order.
    e. Exhibit E — Documentation of completion of sentence and payment of fines, fees, and restitution.
    f. Exhibit F — Affidavit of Petitioner.

WHEREFORE, Petitioner respectfully requests that this Court:

A. Set this matter for hearing pursuant to Rule 1-077.1;
B. After hearing, enter an order within thirty (30) days requiring that all arrest records and public records related to the matter be expunged, pursuant to NMSA § 29-3A-5(E) (or § 29-3A-4(C) for non-conviction);
C. Direct the New Mexico Department of Public Safety, the [arresting agency], and any other custodian of records to seal the identified records and to respond to inquiries that no such record exists; and
D. Grant such other relief as the Court deems just.

Respectfully submitted,

[___________________________________]
[ATTORNEY NAME], NM Bar No. [______]
[FIRM NAME]
[ADDRESS]
[PHONE] | [EMAIL]
Attorney for Petitioner

VERIFICATION

I, [PETITIONER NAME], declare under penalty of perjury under the laws of the State of New Mexico that the foregoing facts are true and correct to the best of my knowledge.

Executed on [__/__/____] at [____________], New Mexico.

[___________________________________]
[PETITIONER NAME]

CERTIFICATE OF SERVICE

I certify that on [__/__/____] I served the foregoing Petition, all exhibits, and a proposed Order on:

• District Attorney for the [____] Judicial District
• New Mexico Department of Public Safety, Law Enforcement Records Bureau
• Arresting agency: [____________________]
• Any identified victim(s): [____________________]

[___________________________________]
[ATTORNEY NAME]

Part C — Filing Checklist

Pre-Filing

• ☐ Confirm category of relief (identity theft / non-conviction / conviction / cannabis).
• ☐ Obtain certified copies of the criminal complaint, indictment/information, and judgment/dismissal order.
• ☐ Order DPS RAP sheet (dated within 90 days of filing).
• ☐ Order FBI RAP sheet (conviction petitions, within 90 days).
• ☐ Confirm completion of sentence, parole, probation, fines, fees, restitution; obtain supporting documents.
• ☐ Confirm no pending charges and no unresolved arrests in any jurisdiction.
• ☐ Confirm waiting period satisfied based on offense level (§ 29-3A-5(A)).
• ☐ Confirm offense is not categorically excluded (§ 29-3A-5(B)).
• ☐ Identify all victims entitled to notice.

Drafting

• ☐ Use Supreme Court Form 4-951, 4-952, 4-953, or 4-954 NMRA, as applicable.
• ☐ Include all data required by Rule 1-077.1(B)(2)–(5) and § 29-3A-5(C).
• ☐ Verify petition under oath.
• ☐ Prepare proposed Order tracking § 29-3A-6 effect language.

Filing and Service

• ☐ File in district court for county where charges originated, arrest occurred, or conviction was entered (Rule 1-077.1(B)).
• ☐ For non-conviction petitions: file under seal (Rule 1-077.1(C); Rule 1-079 NMRA).
• ☐ Pay filing fee (waived for automatic cannabis expungement under § 29-3A-8).
• ☐ Serve District Attorney, DPS, arresting agency, and any identified victim(s) (Rule 1-004; Rule 1-077.1).
• ☐ File certificate of service.

Hearing and Order

• ☐ Set hearing (district attorney has 30 days to object).
• ☐ Prepare petitioner testimony on interest-of-justice factors (§ 29-3A-5(D)).
• ☐ Submit proposed order within 30 days of hearing (§ 29-3A-5(E)).
• ☐ After entry: deliver certified copy of order to DPS, FBI (where applicable), arresting agency, and court clerks holding the record.

Post-Order

• ☐ Confirm DPS removes record from CCH and responds "no such record exists."
• ☐ Confirm court clerk seals court file.
• ☐ Advise client about residual disclosure (bank/financial-regulator inquiries; future criminal proceedings; tribal/federal records not affected).

Sources and References

• Criminal Record Expungement Act, NMSA 1978, §§ 29-3A-1 to 29-3A-9 — https://law.justia.com/codes/new-mexico/chapter-29/article-3a/
• NMSA § 29-3A-5 (Expungement of records — conviction) — https://law.justia.com/codes/new-mexico/chapter-29/article-3a/section-29-3a-5/
• Rule 1-077.1 NMRA (Expungement procedure) — https://nmonesource.com/nmos/nmra/en/item/4361/index.do
• NM Department of Public Safety — Expungements — https://www.dps.nm.gov/law-enforcement-records-bureau/expungements/
• NM Supreme Court Expungement Handout — https://supremecourt.nmcourts.gov/wp-content/uploads/sites/29/2023/11/Expungment-Handout-SJ_-1-28-22.pdf
• Collateral Consequences Resource Center — New Mexico Restoration of Rights Profile — https://ccresourcecenter.org/state-restoration-profiles/new-mexico-restoration-of-rights-pardon-expungement-sealing/