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AN ACT

RELATING TO CRIMINAL RECORDS; CODIFYING AUTHORITY TO EXPUNGE

A CRIMINAL RECORD.

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

Section 1. SHORT TITLE.--This act may be cited as the

"Criminal Record Expungement Act".

Section 2. DEFINITIONS.--As used in the Criminal Record

Expungement Act:

A. "accused" means a person charged with a crime

who is the subject of an expungement order;

B. "arrest records" means records of

identification of a person under arrest or under

investigation for a crime, taken or gathered by an official;

"arrest records" includes information gathered from the

national crime information center or another criminal record

database, photographs, fingerprints and booking sheets;

C. "expunge" means to remove a notation of an

arrest placed on an accused's state record or federal bureau

of investigation record and to destroy or otherwise remove

from public access the court records that contain any

reference to or record of the proceeding;

D. "official" means a person employed by a

governmental entity and acting within assigned duties;

E. "proceeding" means a hearing, trial or grand

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jury proceeding; and

F. "public records" means documentation relating

to a person's arrest, indictment, proceeding, finding or plea

of guilty, dismissal or discharge; except "public records"

does not include:

(1) an investigative report, intelligence

information of law enforcement agencies or the file of a

district attorney or attorney general maintained as a

confidential record for law enforcement purposes and not open

for inspection by members of the public; or

(2) a record maintained by the children,

youth and families department, the human services department

or the public education department when that record is

confidential under state or federal law and is required to be

maintained by state or federal law for audit or other

purposes.

Section 3. EXPUNGEMENT OF RECORDS.--A court of original

jurisdiction, upon its own motion or upon a petition from an

accused, shall order expungement of public records within

thirty days of a petition for expungement if it finds that no

other charge or proceeding is pending against the accused and

if:

A. the accused was a victim of identity theft;

B. the accused, in a proceeding for a violation of

a municipal ordinance, misdemeanor or felony, was released

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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; or

(3) a referral to a pre-prosecution

diversion program;

C. the proceedings were otherwise discharged; or

D. the accused was convicted of a misdemeanor or

violation of municipal ordinance, but has had no other

conviction after completion of the sentence and payment of

any fines and fees owed to the state for the original

conviction:

(1) for a period of two years, unless the

conviction was an offense committed against minors or

children, a sex offense, an offense involving domestic

violence or abuse or an offense involving driving while under

the influence of intoxicating substances; or

(2) for a period of four years after a

misdemeanor aggravated battery conviction.

Section 4. 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.

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Section 5. EFFECT OF AN EXPUNGEMENT ORDER.--Upon entry

of an expungement order, the proceedings shall be treated as

if they never occurred and officials and the accused may

reply to an inquiry that no record exists with respect to the

accused. This section does not affect or otherwise infringe

upon the expungement provisions of Section 29-3-8.1 NMSA

1978.

Section 6. EFFECTIVE DATE.--The effective date of the

provisions of this act is January 1, 2008.