Crimes That Cannot Be Expunged Under New Mexico's Criminal Record Expungement Act

Waiting up to a decade after completing your sentence, paying off thousands of dollars in court fines, and paying a $132 civil filing fee to petition a judge in Albuquerque, Las Cruces, or Santa Fe will result in a mandatory denial if your underlying conviction falls on New Mexico's statutory exclusion list. While the Criminal Record Expungement Act (CREA) gave hundreds of thousands of residents a path to seal old misdemeanor and felony records from public view, the New Mexico Legislature carved out five strict categories of convictions that can never be expunged by a court-no matter how much time has passed or how completely you have rehabilitated your life.

Identifying the specific crimes that cannot be expunged under New Mexico's Criminal Record Expungement Act requires examining Subsection G of the Conviction Expungement Statute (N.M. Stat. Ann. § 29-3A-5(G)). Under this subsection, a District Court judge has zero legal discretion to expunge a conviction for an offense committed against a child, an offense that caused great bodily harm or death to another person, a sex offense as defined in the Sex Offender Registration and Notification Act, embezzlement, or an offense involving driving while under the influence of intoxicating liquor or drugs. However, a vital legal distinction exists between a conviction under N.M. Stat. Ann. § 29-3A-5 and an arrest or charge that did not result in a conviction under the Release Without Conviction Statute (N.M. Stat. Ann. § 29-3A-4).

Before giving up hope on clearing your background check-or wasting money filing a doomed petition-having an attorney examine the exact statutory code of your final disposition is crucial. Through our directory of United States lawyers on this website, you can connect with seasoned New Mexico criminal defense and expungement lawyers who clear dismissed charges, apply for Certificates of Relief, and prepare Governor's Pardon petitions.

Step-by-Step Process in New Mexico

Whether your case was handled in Albuquerque, Las Cruces, Rio Rancho, Santa Fe, Roswell, or Farmington, determining whether your record is barred by statutory exclusions-or eligible for an alternative legal remedy-follows five concrete steps.

Step 1: Pull Your Certified Judgment and Disposition Sheet

Request the final Judgment and Sentence, Order of Dismissal, or Conditional Discharge Order from the originating court, such as the Bernalillo County Metropolitan Court, Albuquerque, the Second Judicial District Court, Bernalillo County, Albuquerque, the Third Judicial District Court, Doña Ana County, Las Cruces, or the First Judicial District Court, Santa Fe County, Santa Fe, and verify your statewide arrest sheet with the New Mexico Department of Public Safety, Law Enforcement Records Bureau, Santa Fe via Form DPS-LERB-01, New Mexico, Department of Public Safety, Authorization for Release of Information.

Step 2: Distinguish Between a 'Conviction' and a 'Non-Conviction'

Check whether the excluded charge actually ended in a conviction. Under N.M. Stat. Ann. § 29-3A-5(G), the statutory bar applies strictly to convictions. If you were arrested or charged with DWI, embezzlement, or a violent crime, but the case ended in an acquittal, nolle prosequi (dismissal by the prosecutor), pre-prosecution diversion, or a conditional discharge without adjudication under N.M. Stat. Ann. § 31-20-13, you are eligible to expunge the court and arrest records after a 1-year waiting period under N.M. Stat. Ann. § 29-3A-4 using Form 4-952, New Mexico, Supreme Court, Petition to Expunge Arrest Records and Public Records upon Release Without Conviction.

Step 3: Check the Exact Statute Number for Plea Reductions

Many defendants arrested for an excluded crime ultimately pleaded guilty to a lesser, eligible offense. For example, if you were arrested for DWI (N.M. Stat. Ann. § 66-8-102) but your attorney negotiated a plea reduction to Reckless Driving (N.M. Stat. Ann. § 66-8-113), or if an embezzlement charge (N.M. Stat. Ann. § 30-16-8) was amended to Larceny (N.M. Stat. Ann. § 30-16-1), the resulting conviction is NOT barred by N.M. Stat. Ann. § 29-3A-5(G) and can be expunged using Form 4-953, New Mexico, Supreme Court, Petition to Expunge Arrest Records and Public Records upon Conviction.

Step 4: Petition for Uniform Collateral Consequences Relief if Needed

If your conviction is permanently ineligible for expungement but blocks you from obtaining an occupational license or job, evaluate petitioning the District Court for an Order of Limited Relief or a Certificate of Restoration of Rights under the New Mexico Uniform Collateral Consequences of Conviction Act (N.M. Stat. Ann. § 31-29-10 and N.M. Stat. Ann. § 31-29-11).

Step 5: Prepare an Executive Clemency Pardon Application

For convictions permanently excluded from CREA, assemble certified court records, character references, and proof of rehabilitation to apply for an executive pardon through the Office of the Governor of New Mexico, Santa Fe and the New Mexico Adult Parole Board, Santa Fe.

DWI and Traffic Fatalities

Two of the most frequently encountered exclusions under N.M. Stat. Ann. § 29-3A-5(G) involve impaired driving and offenses causing severe physical injury or loss of life:

• Driving While Under the Influence (DWI): Under N.M. Stat. Ann. § 29-3A-5(G)(5), any conviction for an offense involving driving while under the influence of intoxicating liquor or drugs-codified under the New Mexico DWI Statute (N.M. Stat. Ann. § 66-8-102)-is permanently ineligible for conviction expungement. This lifetime ban applies even to a first-time petty misdemeanor DWI where the driver completed DWI school and had no prior criminal history. Moreover, under N.M. Stat. Ann. § 66-8-102(T), New Mexico uses a lifetime lookback window for prior DWI convictions to enhance subsequent offenses. (Note: Even in non-conviction DWI dismissals expunged under N.M. Stat. Ann. § 29-3A-4, certain administrative motor vehicle division citation and breathalyzer dispatch logs remain restricted from destruction under state traffic rules).
• Offenses Causing Great Bodily Harm or Death: Under N.M. Stat. Ann. § 29-3A-5(G)(2), any conviction for an offense that caused great bodily harm or death to another person-such as Homicide by Vehicle (N.M. Stat. Ann. § 66-8-101), Great Bodily Harm by Vehicle, Aggravated Battery Resulting in Great Bodily Harm (N.M. Stat. Ann. § 30-3-5(C)), Involuntary Manslaughter, or Murder-can never be expunged under CREA.

Sex Offender Registry Crimes, Crimes Against Children, and Embezzlement

The remaining three statutory exclusions under N.M. Stat. Ann. § 29-3A-5(G) cover sexual offenses, crimes involving minor victims, and financial breaches of trust:

• Sex Offender Registry Crimes: Under N.M. Stat. Ann. § 29-3A-5(G)(3), no conviction for a 'sex offense' as defined in the Sex Offender Registration and Notification Act (N.M. Stat. Ann. § 29-11A-3) is eligible for expungement. This includes Criminal Sexual Penetration (N.M. Stat. Ann. § 30-9-11), Criminal Sexual Contact, Sexual Exploitation of Children, Criminal Sexual Communication with a Child, and Kidnapping or False Imprisonment when committed with sexual intent.
• Offenses Committed Against a Child: Under N.M. Stat. Ann. § 29-3A-5(G)(1), any conviction for an offense committed against a child-including Abandonment or Abuse of a Child (N.M. Stat. Ann. § 30-6-1), Contributing to the Delinquency of a Minor (N.M. Stat. Ann. § 30-6-3), or Enticement of a Child-is permanently barred from expungement.
• The Embezzlement Anomaly: Unlike other non-violent property crimes such as shoplifting, larceny, burglary, or fraud-which ARE eligible for expungement after their respective 2-to-8-year waiting periods-the New Mexico Legislature specifically excluded convictions for Embezzlement (N.M. Stat. Ann. § 30-16-8) under N.M. Stat. Ann. § 29-3A-5(G)(4). Whether the embezzlement conviction was a petty misdemeanor involving under $250 or a second-degree felony involving over $20,000, a conviction under N.M. Stat. Ann. § 30-16-8 cannot be expunged under CREA.

Exploring Governor Pardons as an Alternative

When a New Mexico conviction is permanently barred from judicial expungement under N.M. Stat. Ann. § 29-3A-5(G), the courts lack inherent authority to seal the valid conviction on their own. In Toth v. Albuquerque Police Department, 123 N.M. 637 (NM Ct. App. 1997), the New Mexico Court of Appeals confirmed that outside of specific statutory authorization or extraordinary constitutional violations, courts do not possess broad equitable power to erase accurate criminal records. Instead, individuals with excluded convictions must look to executive and collateral-consequence remedies:

• Executive Pardon by the Governor: Under Article V, Section 6 of the New Mexico Constitution, the Governor can grant a full pardon forgiving a state conviction (such as an old embezzlement conviction). Under the Executive Clemency Guidelines administered by the Office of the Governor of New Mexico, Santa Fe, applicants generally must wait 5 years after completing their sentence for a misdemeanor or fourth/third-degree felony, or 10 years for more serious offenses, before applying. Note that in Shankle v. Woodruff, 64 N.M. 88 (NM Supreme Court 1958), the court held that while a pardon restores civil rights and removes legal disabilities, it does not physically erase the historical fact of the conviction or prevent its use as a sentencing enhancement for a new crime.
• Uniform Collateral Consequences of Conviction Act (UCCCA): Under N.M. Stat. Ann. § 31-29-10 and N.M. Stat. Ann. § 31-29-11, even if a conviction cannot be expunged, an individual can petition the District Court or sentencing authority for an Order of Limited Relief or a Certificate of Restoration of Rights to lift automatic barriers to state occupational licensing, public employment, or housing.
• Criminal Offender Employment Act Protections: Under N.M. Stat. Ann. § 28-2-3 and New Mexico's 'Ban the Box' law (N.M. Stat. Ann. § 28-2-3.1), private employers cannot ask about convictions on an initial written job application, and state licensing boards cannot automatically disqualify an applicant solely because of a prior conviction unless it directly relates to the specific profession.

How Much Does It Cost in New Mexico?

Pursuing non-conviction expungements for dismissed excluded charges or seeking alternative relief in New Mexico involves standard court and legal fees.

• Non-Conviction Expungement Filing Fee ($132): Filing Form 4-952, New Mexico, Supreme Court, Petition to Expunge Arrest Records and Public Records upon Release Without Conviction in the Second Judicial District Court, Bernalillo County, Albuquerque or another District Court to clear a dismissed DWI, embezzlement, or violent arrest costs $132 (waivable via Form 4-222, New Mexico, Supreme Court, Application for Free Process and Affidavit of Indigency).
• Governor's Pardon Application Fee ($0): Applying for executive clemency through the Office of the Governor of New Mexico, Santa Fe costs $0 in government fees.
• DPS Record Check & Certified Copies ($25 to $50): Requesting your official criminal history from the New Mexico Department of Public Safety, Law Enforcement Records Bureau, Santa Fe costs $15, plus nominal clerk fees for certified court dispositions.
• Criminal Defense Attorney Fees ($1,200 to $3,500): Hiring a New Mexico expungement lawyer to clear dismissed charges, petition for a Certificate of Restoration of Rights, or prepare a comprehensive Governor's Pardon dossier typically costs between $1,200 and $3,500.

How Long Does the Process Take?

Timelines vary depending on whether you are clearing a dismissed non-conviction or applying for executive clemency.

• Dismissed Non-Conviction Waiting Period (1 Year): Under N.M. Stat. Ann. § 29-3A-4(A), if an excluded charge (like DWI or embezzlement) was dismissed, acquitted, or resolved via conditional discharge without conviction, you must wait 1 year from the date of final disposition to file, and the court process takes 60 to 120 days.
• Deferred Sentence on Excluded Crimes: Note that in New Mexico, because a deferred sentence under N.M. Stat. Ann. § 31-20-9 still requires an initial adjudication of guilt before dismissal, New Mexico courts treat deferred sentences under the conviction expungement rules of N.M. Stat. Ann. § 29-3A-5, whereas a conditional discharge under N.M. Stat. Ann. § 31-20-13 is entered without an adjudication of guilt and qualifies after 1 year under N.M. Stat. Ann. § 29-3A-4.
• Executive Pardon Processing Time (12 to 24 Months): A Governor's Pardon application requires waiting 5 to 10 years after sentence completion and takes 12 to 24 months for Parole Board investigation and executive decision.

Frequently Asked Questions (FAQ)