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Supreme Court Law Library

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How do I expunge a criminal record?

The Arrest Record Information Act was passed to ensure accurate, complete, and responsibly disseminated records among law enforcement agencies in New Mexico. See NMSA 1978, § 29-10-2 (1975). This act does not give New Mexico courts the power to expunge a criminal record. State v. C.L., 2010-NMCA-050; see also Toth v. Albuquerque Police Department, 1997-NMCA-079. Courts may be petitioned to expunge criminal records according to other statutes or the common law.

  1. Expunge Criminal Record by Statute
    Outside of two very specific exceptions, criminal records may not be expunged under the Statutes of New Mexico.
     
    • First Drug Offence for Minors
      It is possible for a minor’s first drug possession offense to be expunged, but only if the minor went through the conditional discharge process. See NMSA 1978, § 30-31-28 (1972). If so, then when the proceedings are discharged, the person may ask the court to expunge all the records (including even the arrest record) relating to this particular offense.
       
    • Identity Theft
      A person may petition the court to delete the person’s the name and/or expunge the person’s criminal records when the acts committed were done by someone else. See NMSA 1978, § 31-26-16 (2009).
       
  2. Expunge Criminal Record by Common Law
    New Mexico courts may have an inherent power derived from the New Mexico Constitution to expunge criminal records, but whether the courts have this power is not yet known. State v. C.L., 2010-NMCA-050; see also Toth v. Albuquerque Police Department, 1997-NMCA-079. Even if the courts of New Mexico do have this power, it seems that exercising it would require a showing of “extraordinary circumstances."  Extraordinary circumstances do not seem to include being unable to find a job because of a criminal record. State v. C.L., 2010-NMCA-050, ¶ 19.

    Extraordinary circumstances may, perhaps, be found in situations that involve an arrest that was “illegal, unconstitutional, [or] based on inadequate or flawed procedures.” State v. C.L., 2010-NMCA-050, ¶ 19, citing United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977).
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