Which Crimes Can Be Expunged?
If you have ever been arrested, charged, or convicted of a crime in New Mexico, there is no escaping a criminal record.
Even if you are never convicted, there will be a permanent record of it somewhere. This applies to 70 million adults in the U.S. – about one in three.
A criminal record can have serious consequences for your future. As well as serving any initial sentence or probationary period, you may continue to pay the price when trying to secure employment, housing, immigration clearance or anything else requiring a routine background check.
But did you know that the records of most crimes can be expunged (sealed) in New Mexico? With a few exceptions, criminal records can be made invisible to the public, protecting you from problems with future background checks
But which crimes can be expunged and which stay on your record?
The Criminal Record Expungement Act in New Mexico
Since January 1, 2020, the state of New Mexico has allowed the expungement (sealing) of most arrests, cases which were dismissed, and conviction records in all but the most serious crimes.
The new law (known as Criminal Record Expungement Act or CREA for short) allows the following:
- Expungement of cases that were dismissed (all but a small category) after a one-year waiting period, providing no new charges are pending against the individual.
- Expungement of most cases in which there was a conviction after a conviction-free waiting period of two to ten years, depending on what the underlying charges were.
Before these changes to the law, a person arrested and charged with any crime in New Mexico still had a permanently publicly accessible record even if they were never convicted of the crime.
Only the criminal records of juveniles, first drug offenses committed under the age of 18, and crimes committed by victims of human trafficking could be sealed prior to the changes.
The new laws remedy this rather unjust situation where somebody’s future employment, housing, immigration status or other key aspects of their life could be negatively affected by actions taken a long time ago that never resulted in a conviction or where a person proved after conviction that they went on to live a productive life with no further offenses.
New Mexico is leading the way with this and has now implemented some of the broadest-reaching expungement laws in the country.
Which criminal cases cannot be expunged?
There are certain crimes that CANNOT be expunged under the CREA law. Convictions in the following cases will NOT be eligible for record-sealing:
- Sex crimes – no conviction for a sexual offense is eligible for expungement, whether rape, sexual assault, or a lesser crime.
- Crimes against children – no criminal conviction for a crime committed against a child is eligible for expungement.
- Violent crimes resulting in great bodily harm or death – whether battery resulting in great bodily harm, homicide, manslaughter or another type of violent crime resulting in great bodily harm, such convictions do not qualify for expungement.
- Driving while intoxicated (DWI) – a conviction for driving under the influence of alcohol or while intoxicated cannot be expunged and will remain visible on your record, even if it was a first offense and the individual was given a deferred sentence.
- Embezzlement – a conviction for this “white collar” crime cannot be expunged.
The NM Legislature specifically excluded these crimes, as they determined that they involved public safety issues. It is therefore considered in the public interest for all such records to remain visible to employers, landlords, etc.
So, you have no chance of your criminal record being expunged if you were convicted for any of the above. If, however, you were arrested and/or charges with any of the above crimes and you were NOT convicted, then your case is eligible for expungement.
What criminal cases can be expunged?
The records of any crimes not excluded by the CREA law (those detailed above) can be expunged provided you meet the eligibility criteria – and regardless of whether you were convicted or not. This includes misdemeanor and felony arrests, dismissals, acquittals, and convictions.
Once expunged, you are entitled to answer “no” if asked whether you have ever been arrested or convicted.
Expunged records are not visible to the general public but may still be accessed by District Attorneys, judges, and employers requiring a security clearance (such as for law enforcement positions).
What are the benefits of expungement?
Background checks are a fact of life these days for jobs, housing, credit checks, student loans, occupational, licenses, etc. Most employers and businesses use both criminal and commercial background checks which access publicly available information. That information includes every time you have been arrested (even if the arrest did not result in a case being filed), every case that has been filed (even if the case was dismissed), and every case in which you were convicted of a crime.
Once your arrest or case is expunged, the clerk of the court will remove the public record of your arrest or case from their office and the court’s website. The public will no longer be able to see that information and neither will any background check. If asked, the court will answer “no such record exists.” Under federal law, agencies such a credit reporting agencies cannot include any expunged information on a background check.
What are the waiting periods for expungement?
The length of time you have to wait before applying for expungement depends on the nature of your crime.
It varies according to the seriousness of the crime. For some crimes, you are eligible immediately while others are subject to a 10-year waiting period.
Here are the waiting periods:
- Identity theft: Immediate eligibility
- Non-convictions (felony or misdemeanor) including conditional discharge, pre-prosecution diversion, acquittals, etc.: One year from date of final disposition.
- Municipal ordinance or misdemeanor convictions: Two years from the end of the sentence
- Misdemeanor aggravated battery or 4th-degree felony convictions: Four years from the end of the sentence
- 3rd-degree felony convictions: Six years from the end of the sentence
- 2nd-degree felony convictions: Eight years from the end of the sentence
- Any crime of domestic violence, including misdemeanors, and 1st-degree felony convictions: Ten years from the end of the sentence
Just to reiterate, crimes in the ineligible categories cannot be expunged unless you were never convicted.
Eligible for record expungement and in need of assistance?
If you have been arrested and the charged were dismissed, if you had a case filed against you and then dismissed, or if you were convicted of an eligible crime and you completed your sentence, probation or parole, and paid your fines, you can petition to have your arrest record/conviction expunged after the waiting period – providing you have no further arrests or convictions on your record.
An expungement lawyer at New Mexico Legal Group can help advise you and file a petition for expungement with the court. Start with a free case evaluation. Call 505.876.9175.