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  • Understanding the Standards of Review for an Expungement Appeal

    Posted on by JACK MKHITARIAN

    Standards of review for an expungement appeal.In New Mexico, you will almost certainly have a criminal record if:

    • The police arrest you for a crime;
    • The prosecutor charges you with a crime;
    • You plead guilty to a crime; or
    • A court convicts you of a crime.

    A criminal record can follow you around like an angry ghost and might prevent you from getting a job, a bank loan, or even an apartment. These negative consequences can affect you even if you were never convicted—but only arrested and charged with a crime.

    What Is an Expungement?

    An expungement allows you to petition the court to wipe your slate clean. If the court grants it, for most purposes, you can conceal whatever record the court expunged. You can then go on with your life as if the incident never happened.

    In New Mexico, you must apply to a court for an expungement. The judge enjoys a considerable degree of discretion concerning whether to grant your expungement petition. However, if the district court judge denies your petition, you can appeal the denial.

    The Differences Between District Courts and Appeals Courts

    District courts and appeals courts perform different functions. District courts and magistrate courts are courts of general jurisdiction for felony and misdemeanor criminal cases and trials in New Mexico. Appeals courts have jurisdiction to hear appeals from the lower courts. They make their rulings based on documents provided to them by the lower courts, including transcripts of the lower court proceedings.

    What Is a “Standard of Review”?

    Appeals courts are typically reluctant to grant appeals out of respect for decisions made by the district court judges. A cavalier attitude towards overturning the rulings of lower courts has the potential to destabilize the entire judicial system.

    Consequently, appeals courts deny most of the appeals that dissatisfied parties file with them. A “standard of review” describes how much deference a higher court should grant rulings of a lower court.

    Different Types of Standards of Review (as Applied to Expungement Appeals)

    Different standards of review apply, depending on what grounds the defendant bases their appeal.

    Issues of Fact

    An issue of fact is the kind of issue that an eyewitness might be able to resolve. For example, if the court is trying to determine whether the petitioner violated their probation by leaving the state, eyewitness testimony may resolve this issue. Since appeals courts do not hear the testimony of witnesses, they are very reluctant to overturn district court rulings based on issues of fact. When a ruling rests on an issue of fact, two standards of review exist that might overturn the lower court’s decision:

    • “Lack of substantial evidence” to support the district court’s ruling: Unfortunately for the party who appeals, just about any evidence will be enough to support the district court’s ruling.
    • “Clearly erroneous”: This standard might apply to overturn a lower court decision if, for example, it was based on the conclusion that the defendant performed an act that was physically impossible or highly improbable (e.g., shooting someone between the eyes from 2,000 yards away).

    An appeals court will overturn a lower court’s ruling if it either lacked substantial evidence or if it was clearly erroneous. Neither one happens very often.

    Issues of Law

    Appellate courts can review issues of law, which are questions about how the law should apply in a given situation. Here are a couple of examples to give you an idea:

    • Did the New Mexico state legislature intend for the expungement statute to allow the expungement of the particular crime that the defendant was convicted of?
    • Was the criminal statute under which the defendant was originally convicted an unconstitutional law?

    The standard of review for an appeals court with respect to an issue of law is called “de novo.” This is a Latin phrase that means “from the new.” This means that the appeals court decides the issue without referencing the trial court’s decision. They basically look at the fact as if for the first time and make their independent decision.

    Mixed Issues of Fact and Law

    In many cases, it is difficult to tease apart factual and legal issues or to determine whether the issue at stake is a dispute over a fact or a dispute over the interpretation of a law. One type of issue that typically includes both factual and legal concerns is the lower judge’s discretion on whether the petitioner has been sufficiently reformed to warrant the expungement of a criminal conviction.

    In most cases of mixed fact and law, an appeals court will either:

    • Break down the issue into sub-issues of fact and law, and resolve each one separately using the applicable standards of review outlined above; or
    • Decide, looking at the issue as a whole, whether factual or legal sub-issues predominate, and resolve the entire issue based on the appropriate standard of review.

    Mixed issues of fact and law are perhaps the most difficult of all “standard of review” problems.

    Procedural Errors

    An expungement petitioner might appeal the denial of an expungement petition based on an assertion that the lower court judge committed a procedural error—such as dismissing a petition for failing to meet an overly strict deadline for submitting certain evidence. In this case, the appeals court will use one of two standards:

    • Abuse of discretion, or
    • Plain error.

    The differences between these two standards of review are technical. But the appeals court can overturn the district court’s ruling if they find that the trial court judge abused their discretion or made a plain error. However, much like disputes of fact, appeals courts rarely overturn district court rulings on these bases.


    Instead of simply overturning a district court’s ruling, an appeals court might “remand” the case back to the district court. To remand a case is to send it back to the lower court with instructions to correct an error identified by the higher court and then resolve the case accordingly. The appeals court might, for example, order a remand after clarifying the meaning of a statute that the lower court misinterpreted.

    Act Decisively Before Time Runs Out!

    The attorneys at New Mexico Criminal Law Offices are aggressive, knowledgeable, and relentless. We have represented many defendants before the New Mexico criminal justice system, and we know how to best handle expungement appeals for our clients. Remember一clearing your name is our first priority.

    Contact the lawyers at New Mexico Criminal Law Offices by calling 505-200-2982 or by contacting us online for a free consultation.