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  • What the New Expungement Laws in New Mexico Mean for Your Criminal Record

    Posted on by JACK MKHITARIAN

    On January 1, 2020, a new expungement law went into effect in New Mexico, known as the Criminal Record Expungement Act (CREA). Now defendants may expunge their criminal record as long as it meets specific requirements.

    Understanding the basics of who does and does not qualify is important. While the law allows some to expunge, not all crimes apply. If you want to explore your options for expungement, speak with a criminal defense attorney. Even if you qualify, you want an attorney to represent you throughout the process and help file your petition to the court. Furthermore, you need an advocate to argue on your behalf – in case there is resistance.

    Lastly, an attorney will make sure that your record is truly expunged – ensuring all public records of an arrest or conviction are removed.

    What Criminal Cases Cannot Be Expunged under the New CREA Laws?

    Under CREA, there are specific acts that will not be expunged. The following cases cannot use the new laws under CREA:

    • DWI – If you were convicted of driving under the influence, that will remain on your record and you cannot expunge it.
    • Embezzlement – While some “white collar” crimes might expunge under CREA, embezzlement is not one of them. Embezzlement involves taking or holding onto assets for personal gain away from those who rightfully own them. It is a type of theft crime, and the person convicted of embezzlement is typically entrusted with caring for those assets.
    • Sex Crimes – Any sex crime is ineligible for expungement, including rape, sexual assault, attempted assault, pornography, etc.
    • Crimes against Children – Anyone convicted of a crime against a child will not receive expungement.
    • Violent Crimes That Resulted in Bodily Harm or Death – Homicide, murder, aggravated battery, or assault crimes do not qualify for expungement. If the victim suffered bodily harm or died, these crimes are ineligible.

    What Criminal Cases Can be Expunged under CREA?

    The crimes above you must be convicted of. Therefore, if any of the crimes above did not result in a conviction, and you were only arrested or charged with those crimes, then you can expunge them.

    Expungements for a Clean History

    After you have completed your sentence for crimes not listed above, paid any fines associated with your criminal act, and you are not under probation or parole, you can petition to have your arrest record along with the conviction expunged – but there is a catch. You must have a clean criminal history. That means no further arrests or convictions on your record.

    Furthermore, the court will review a few other factors to determine your eligibility for an expungement, including:

    • The type of offense you are requesting be expunged. The crimes mentioned above are violent, serious offenses, and they will not be expunged if you served a sentence for them. Any criminal act that is considered a threat to public safety may not receive an expulsion.
    • Past criminal history, arrest records, and criminal acts. You cannot expunge a criminal case if you are convicted of another after serving your sentence. Likewise, the court will review your overall criminal history before deciding if you qualify. Anyone with a long criminal record will not see an expungement approved.
    • Length of time since you were arrested or convicted. The time between the criminal act and when you apply matters. There are waiting periods for how long you have until you can request an expulsion, and these waiting periods depend on the crime you are trying to expunge.

    How Long Do You Have to Wait?

    The timeframe for how long you must wait before you can apply for an expungement depends on the crime. For example, a non-conviction (whether misdemeanor or felony) still requires that you wait one year from the date of disposition. A misdemeanor conviction requires you to wait two years after serving the final day of your sentence, while a misdemeanor aggravated battery or 4th degree felony requires that you wait four years from the final day of your sentence.

    A first-degree felony requires that you wait for 10 years after the final day of your sentence. A second-degree felony will require that you wait for eight years, while a third-degree felony requires that you wait six years before you can apply.

    Note that, again, the crimes listed in the ineligible categories do not apply here. Regardless of how long it has been for those crimes, you cannot expunge them unless you were not convicted.

    Do You Really Need an Attorney?

    Perhaps you served the final days of your only misdemeanor offense five years ago, and you know you qualify for expungement, but should you apply for it alone? While the law does allow you to wipe the slate clean on a lot of criminal offenses, it is much more than just filing a petition and being granted an expungement.

    You need an attorney to make sure that your crime qualifies, review your criminal record, and prepare an argument for the court as to why you deserve that expungement. Even those who qualify may not receive it if they do not file the proper paperwork, or they lack the proper evidence at the time of their petition.

    Hire a Local Attorney That Can Help You Succeed with Your Expungement

    If you have a criminal record, but you think you may qualify for expungement under the new CREA laws, contact an attorney at New Mexico Criminal Law Offices. We offer free, no-obligation case evaluations, and we can discuss your options for expungement and start the process if now is the right time for you to file.

    Our team is more than familiar with the requirements under CREA, and we will help to not only file your petition, but argue that petition in court to ensure you get the clean slate you need for a fresh start.

    Do not let a permanent criminal record follow you for the rest of your life. Instead, contact a defense attorney now by calling our office or contact us online with your questions.