Eligibility

AM I ELIGIBLE FOR EXPUNGMENT?

There are three main categories of cases that can be expunged: convictions, dismissals, and cases involving identity theft. To accurately assess whether your case is eligible for expungement, contact our office today, to talk directly to an attorney. 

CHARGES THAT DID NOT RESULT IN A CONVICTION; DISMISSED CASES

Dismissed cases include the following: acquittal, not guilty verdicts, nolle prosequi, referral to a diversionary program, and a conditional discharge under NMSA 31-20-13. These ‘dismissed’ case still remain public record. Any member of the public is able to visit the local police station with minimal identifying information of a person, and obtain a copy of the full police report describing the incident. An easier method of finding out about the charge generally is accessible through a public website at no charge. 

 

While these cases are generally not supposed to be showing up on background checks, many clients report issues stemming from a ‘dismissed’ case, which stops them from getting employment, as well as receiving different treatment in many areas of their lives.

The requirements for a dismissed case to be eligible for expungement are as follows:

  1. A waiting period of one year since the date of the final disposition: either dismissal, or completion of any program requirements.
  2. The petitioner has no active/pending charges.
  3. Proof of the dismissal by showing of court records.
  4. Proof that any outstanding fines/fees and/or restitution was paid in full.
  5. A complete New Mexico background check from the Department of Public Safety.
  6. A complete Federal background check.
  7. A petition naming the District Attorney, the Department of Public Safety, and the law enforcement agency that arrested the Petitioner.
  8. Proof of legal service on all agencies involved.

 

After a hearing on the petition, the court shall issue an order within 30 days of the hearing, requiring that all arrest records and public records related to the case be expunged. The order will prohibit all relevant law enforcement agencies and courts from releasing copies of the records to any person, except upon order of the court.

CHARGES THAT RESULTED IN A CONVICTION

Convictions include any case in which a person pled guilty or no contest, or was found guilty at trial. Where there was a guilty finding, the Court will have to determine if “justice will be served” by the granting of a petition. For these case especially, it is very important to hire an experienced attorney to increase your chances for expungement.

 

As with dismissed cases, police reports associated with convictions are available through the local law enforcement agency, as well as through a public website. Additionally, these cases will be appearing on a background check, with a high probability of effecting employment, insurance, family law issues, housing, loans, and many other issues.

The requirements for a conviction case to be eligible for expungement are as follows:

  1. A specific time period, calculated from the final date of the sentence, during which no additional criminal convictions were found.
    1. 2 years for any municipal ordinance or a misdemeanor.
    2. 4 years for a misdemeanor charge of aggravated battery (as defined in NMSA 30-3-5) or a 4th degree felony not otherwise mentioned.
    3. 6 years for any 3rd degree felony not otherwise mentioned.
    4. 8 years for any 2nd degree felony not otherwise mentioned.
    5. 10 years if petition relates to a 1st degree felony or for any offense provided in the crimes against household members act
  2. The petitioner has no active/pending charges.
  3. Proof of the final disposition of the case by a showing of court records.
  4. Proof that any outstanding fines/fees and/or restitution was paid in full.
  5. A complete New Mexico background check from the Department of Public Safety.
  6. A complete Federal background check.
  7. A petition naming the District Attorney, the Department of Public Safety, and the law enforcement agency that arrested the Petitioner.
  8. Proof of legal service on all agencies involved.
  9. The crime must not be any of the following:
    1. Offenses committed against a child.
    2. Offenses that caused great bodily harm or death to another person.
    3. Sex offenses (as defined in NMSA 29-11A-3)
    4. Embezzlement (as defined in NMSA 30-16-8)
    5. Driving while Under the Influence
  10. The petition must show that “justice will be served” by some of the following factors:
    1. The nature and gravity of the offense or conduct;
    2. The Petitioner’s age, criminal history, and employment history;
    3. The amount of time it’s been since the offense was committed, and the related sentence was completed;
    4. Any adverse consequences the Petitioner will face if the petition is denied; and
    5. Any reason to deny, submitted by the District Attorney’s Office

 

For convicted charges, all cases are not automatically entitled to dismissal, and must pass the balancing test. This is where experienced legal services are crucial.