How to Get Your Record Expunged
The simplest way to ensure that your criminal record is clean is to never get arrested or charged with a crime!
However, we all know that sometimes people can make mistakes and may deserve a chance to redeem both themselves and their records or to show that perhaps those mistakes were made by law enforcement. Unfortunately, in America today, around one in three American adults possess a criminal record.
If you have been arrested, charged, and/or convicted, this will show on your record. Even if you were arrested and the charges were later dropped or the case was dismissed, there will be a publicly accessible record of this for the rest of your life unless you take steps to get it expunged.
The expungement of an arrest or criminal case is possible in New Mexico in a number of circumstances, even if you were convicted.
So, where do you stand when it comes to routine background checks when applying for a job, for instance?
What is expungement?
An expungement (sometimes called “sealing”) is where the record of an arrest, charge, dismissal, acquittal or conviction is removed from the public record and is no longer reported on public background checks.
An expungement can be crucial in certain circumstances, such as applying for particular types of employment. Removing the record can allow a job applicant to truthfully say they have no criminal record and have never been arrested.
If, for example, a person was arrested in the past for a crime and the record has not been expunged, a background check might flag that the applicant lied on the job application. This would almost certainly rule them out of the running for the position.
However, the “collateral” consequences of a criminal record extend far beyond employment and can also affect your housing, occupational licenses, immigration, travel, and other aspects of your life.
Note that while an expunged record is no longer available to the public, a District Attorney or certain employers in sensitive sectors may still be able to access the original records.
The easiest way to find out if you have a criminal record is to use the New Mexico courts online case lookup system.
Which records can and can’t be expunged?
Only certain types of criminal records are eligible for expungement and different waiting periods apply before you can petition the court.
The length of the waiting period depends on the nature of the record but is generally between one and ten years after the arrest.
If you are convicted of a crime in New Mexico, the details of this criminal conviction will remain on your record for life.
However, criminal records may be expunged from both the state database as well as publicly available databases if:
- You were arrested but never charged with a crime in court, or
- You were a victim of identity theft, or
- Your case was dismissed or you completed a diversion program or were granted a conditional discharge or, if you were convicted, you successfully completed your sentence and/or probation.
Certain types of crimes are not eligible for expungement. If you were convicted of the following crimes, however, you will not be eligible for expungement:
- Offenses against a child,
- Offenses involving death or great bodily harm to another,
- Sex offenses,
Please note that if you were NOT convicted of the above crimes, however, then the record of that case will be eligible for expungement.
In the case of identity theft (where someone steals your identity, commits a crime, and is arrested, charged, and/or convicted), you can get the record expunged with no waiting period.
These records will be sealed on the New Mexico Courts website.
All federal conviction records are permanent and cannot be sealed.
Also, note that an expunged conviction in New Mexico will still appear on the National Crime Information Center (NCIC) background check. Therefore, it will show up if you intend to buy federal firearms.
Do you need a criminal lawyer?
Technically, you do not require a lawyer to petition the court for expungement of a record.
However, the process of petitioning the court for expungement is complicated and requires the petitioner to gather all of the records from their arrest, case filings and dispositions, preparation of a petition, FBI and Department of Public Safety background checks, service of all documents on all parties (DA’s offices, law enforcement agencies, DPS), filing answers to responses filed by DA’s offices and DPS lawyers, and arguing the case before a judge. It is also important to determine if you are eligible for expungement prior to beginning the process and ensuring that nothing happened subsequent to your case which might have made you ineligible before wasting any time. Because it’s a complex process, an attorney can properly assess your case, make sure that everything is done correctly, and present your case in the best possible light to successfully argue for expungement.
Unlike a case wherein if you are charged with a crime and cannot afford an attorney, the court will appoint a public defender to represent you, you are not entitled to have an attorney represent you in an expungement petition and one will not be appointed for you. You will therefore need to either represent yourself in this process or retain an attorney to represent you in asking the court to expunge your case.
At the New Mexico Legal Group, an experienced expungement lawyer will help you navigate the complexities of the legal processes.