HB0505

HOUSE BILL 505

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

Antonio "Moe" Maestas

AN ACT

RELATING TO CRIMINAL RECORDS; PROVIDING AUTHORITY TO EXPUNGE A CRIMINAL RECORD.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Criminal Record Expungement Act".

SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Criminal Record Expungement Act:

A. "arrest records":

(1) means records that identify a person under arrest or under investigation for a crime that are created or maintained by an official and that may include information gathered from the national crime information center or another criminal record database, photographs, fingerprints and booking sheets; and

(2) does not include:

(a) citations for driving under the influence of intoxicating liquor or drugs maintained by the taxation and revenue department;

(b) computer-aided dispatch information; or

B. "expunge" means to remove from access by the general public a record, notation of or any reference to an arrest, complaint, indictment, information, plea of guilty, conviction, acquittal, dismissal or discharge record, including access on a publicly accessible court, corrections or law enforcement website; and

C. "public records" means:

(1) documentation that relates to a person's arrest or indictment; or to a proceeding or a finding or plea of guilty, a conviction, an acquittal, a dismissal or a discharge related to a proceeding that involves the person; and includes information posted on a court, corrections or law enforcement website; and

(2) does not include:

(a) arrest record information that: 1) is maintained by the state or any of its political subdivisions that pertains to a person charged with the commission of any crime and that reveals confidential sources, methods, information or individuals accused of but not charged with a crime; or 2) is confidential and prohibited from release, except as provided in the Arrest Record Information Act or another applicable law;

(b) a district attorney's or the attorney general's file maintained as a confidential record for law enforcement purposes and that is not open for inspection by members of the public;

(c) a record maintained by the children, youth and families department, the human services department or the public education department when that record is confidential pursuant to state or federal law and is required by state or federal law to be maintained for audit or other purposes; or

(d) a record received pursuant to a background check authorized by law.

SECTION 3. [NEW MATERIAL] EXPUNGEMENT OF RECORDS UPON IDENTITY THEFT OR WRONGFUL ARREST, INDICTMENT OR CHARGE.--

A. A person who is a victim of identity theft or is wrongfully arrested, indicted or charged for any crime may petition the district court for an order to expunge the related arrest records and public records.

B. After a hearing on the petition and upon a showing that the person is a victim of identity theft or was wrongfully arrested, indicted or charged, the court shall issue an order within thirty days of the hearing requiring that all arrest records and public records be expunged.

C. The court shall provide a copy of the order to all relevant law enforcement agencies and courts. The order shall prohibit all relevant law enforcement agencies and courts from releasing copies of the records to any person, except upon order of the court.

SECTION 4. [NEW MATERIAL] EXPUNGEMENT OF RECORDS UPON RELEASE WITHOUT CONVICTION.--

A. A person released without conviction for a violation of a municipal ordinance, misdemeanor or felony may petition the district court for an order to expunge arrest records and public records. A person is eligible to petition for expungement one year after dismissal of the matter.

B. After a hearing on the petition, the court shall issue an order within thirty days of the hearing requiring that all arrest records and public records be expunged if it finds that no other charge or proceeding is pending against the person and if the person was released without a conviction, including:

(1) an acquittal or finding of not guilty;

(2) a nolle prosequi, a no bill or a dismissal other than a dismissal pursuant to Section 31-20-9 NMSA 1978;

(3) successful completion of a pre-prosecution diversion program; or

(4) the proceedings were otherwise discharged.

SECTION 5. [NEW MATERIAL] EXPUNGEMENT OF RECORDS UPON CONVICTION.--

A. A person convicted after no more than one incident involving a misdemeanor or violation of a municipal ordinance and who has had no other convictions after completion of the sentence and the payment of any fines and fees owed to the state for the conviction may petition the district court within the time periods provided in this section for an order to expunge the person's arrest records and public records.

B. After a hearing on the petition, the court shall issue an order within thirty days of the hearing requiring that arrest records and public records be expunged if it finds that no other charge or proceeding is pending against the accused and that justice will be served by an order to expunge and:

(1) no other charge or proceeding has occurred for a period of five years if the conviction was for a misdemeanor; or

(2) no other charge or proceeding has occurred for a period of ten years if the conviction was for an offense involving domestic violence or abuse.

C. The time for calculating eligibility for expungement begins the day a person's sentence, including probation, is completed.

D. The provisions of Subsection A of this section do not apply to a crime committed against a person younger than eighteen years of age, a sex offense, an embezzlement offense or an offense involving driving while under the influence of intoxicating liquor or drugs.

E. The court shall provide a copy of the order to all relevant law enforcement agencies and courts. The order shall prohibit all relevant law enforcement agencies and courts from releasing copies of the records to the general public, except upon order of the court.

SECTION 6. [NEW MATERIAL] NOTICES--RULEMAKING.--The administrative office of the courts and the department of public safety shall develop rules and procedures to implement the Criminal Record Expungement Act, including procedures for notifying the accused of the accused's rights under that act.

SECTION 7. [NEW MATERIAL] EFFECT OF AN ORDER TO

EXPUNGE.--Upon entry of an order to expunge, the proceedings shall be treated as if they never occurred, and officials and the person who received the order to expunge may reply to an inquiry that no record exists with respect to the person. This section does not affect or otherwise infringe upon the expungement provisions of Section 29-3-8.1 NMSA 1978.

SECTION 8. APPLICABILITY.--Nothing in the Criminal Record Expungement Act shall be construed to prohibit a law enforcement agency from maintaining and using criminal history information for any lawful purpose.

SECTION 9. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2018.

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