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  • Is It Better to Seal or Expunge Your Record?

    Posted on by JACK MKHITARIAN

    Sealing of confidential records.Everybody makes many mistakes throughout the course of their life. However, some missteps—such as the commission of a crime—are more serious than others. In some cases, it can be exceptionally difficult to move on after a conviction. It is common for decades-old convictions to haunt those affected by them, preventing them from getting a job, joining the military, voting, obtaining certain government benefits, purchasing firearms, getting custody of their children, and more.

    In most cases, once someone is convicted of a crime, it will remain on their record forever. Criminal records are publicly available, and anyone with an internet connection can dig up another’s past. More alarming is that even cases that do not result in a conviction will remain on someone’s record. However, there are ways to get a case removed from your record in some cases, either through expungement or sealing, even if you were found guilty of the offense.

    What Is an Expungement?

    New Mexico Statutes section 29-3A-2 defines expungement as “the removal from access to the general public of a notation of an arrest, complaint, indictment, information, plea of guilty, conviction, acquittal, dismissal or discharge record, including a record posted on a publicly accessible court, corrections or law enforcement internet website.” Thus, an expunged record still remains on file; however, it is not publicly available. Generally, someone can deny an arrest if their record was expunged. However, there is an exception allowing disclosure when a person applies for a job at a “financial institution regulated by the financial industry regulatory authority or the securities and exchange commission.”

    What Does Sealing Records Mean?

    Sealing records has the effect of erasing the record completely. If someone’s record is sealed, they can deny that the event ever happened in all contexts. Thus, if given a choice between the two, sealing records is preferable, because this completely clears the arrest or conviction from their record and they can answer in the negative to any questions regarding the arrest. However, there are only very limited circumstances when the court will seal a record, and for the most part, sealing records and expunging records will have the same effect.

    The New Mexico Criminal Record Expungement Act

    Criminal record expungement case.In 2019, New Mexico lawmakers passed comprehensive legislation related to the expungement and sealing of records. The Criminal Record Expungement Act (CREA) creates a dividing line between cases that ended in a conviction and those that did not.

    Generally, cases that did not end in a conviction are eligible for expungement after one year from the date the case ended. However, the court will not grant a request if the person requesting an expungement has open criminal charges.

    For cases ending in a conviction, the court may still entertain an expungement petition, provided the CREA does not exclude the specific offense. Excluded offenses include:

    • Crimes committed against a child;
    • Crimes resulting in serious bodily injury or death;
    • DUI and DWI offenses;
    • Embezzlement; and
    • Sex offenses.

    To qualify for the expungement of a conviction, a person must wait between two and ten years. For example, most non-violent misdemeanor convictions require a two-year waiting period, while a felony conviction requires a waiting period between four and ten years. Any misdemeanor or felony offense crime committed against a household member requires a ten-year waiting period before the defendant is eligible to have their record expunged. The defendant must also pay all restitution to qualify for an expungement.

    Notably, an expungement is not a guarantee. The person seeking an expungement must show that “justice will be served by an order to expunge.” When evaluating an expungement request, courts consider the following:

    • The nature and gravity of the offense;
    • The requesting party’s age, criminal record, and employment history;
    • The amount of time since the conviction;
    • The consequences the requesting party faces if the court denies the expungement request; and
    • The prosecution’s arguments against granting the expungement.

    In some cases, prosecutors will not contest an expungement; however, that is the exception. Those seeking an expungement should work with a dedicated expungement legal practitioner in New Mexico to facilitate the process and increase their chances of success.

    When Will a Court Seal a Record?

    The distinction between an expungement and a sealed record is very minor, and for most people, the two will have the same benefits. In fact, most people use the two terms interchangeably. However, under New Mexico law, sealing records is rare. There are two situations where a court will seal someone’s record.

    Victims of Human Trafficking

    New Mexico law recognizes that the victims of human trafficking may commit crimes against their will. Thus, in these situations, state law allows for sealing records related to non-homicide offenses. However, the person seeking to have their record sealed must show that their “involvement in the offense was due to duress, coercion, use of force, threat to or fraud committed against the petitioner by a person who has committed human trafficking involving the petitioner.”

    Juvenile Records

    Perhaps the most common reason a court will seal records is for juveniles who were adjudicated delinquent of a crime. In this situation, the court can entertain a petition to seal an adult’s juvenile record, provided:

    • Two years have passed since they completed their sentence;
    • They have not committed a crime involving moral turpitude; and
    • They do not have any other open cases.

    Courts will also consider expunging a juvenile’s record before they reach 18 years of age if they can show “good cause.”

    Are You Seeking an Expungement?

    Having a criminal record can seriously interfere with your life. However, under newly passed legislation, you may be able to get your record expunged or possibly sealed. At the New Mexico Criminal Law Offices, we help clients prepare expungement petitions to clean up their records so they can move on with their lives. To learn more about how we can help you with your New Mexico expungement, call us today or reach out through our online form.