SB0389

SENATE BILL 389

50th legislature - STATE OF NEW MEXICO - first session, 2011

INTRODUCED BY

Michael S. Sanchez

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. "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; except "arrest records" does not include:

(1) driving while intoxicated citations maintained by the taxation and revenue department;

(2) computer-aided dispatch information; or

(3) log books relating to breath alcohol testing equipment;

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

C. "public records" means documentation relating to a person's arrest, indictment, proceeding, finding or plea of guilty, conviction, acquittal, dismissal or discharge, including information posted on a court or law enforcement web site; but "public records" does not include:

(1) arrest record information that:

(a) reveals confidential sources, methods, information or individuals accused but not charged with a crime and that is maintained by the state or any of its political subdivisions pertaining to any person charged with the commission of any crime; or

(b) is confidential and unlawful to disseminate or reveal, except as provided in the Arrest Record Information Act or other law;

(2) 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;

(3) 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; or

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

SECTION 3. 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 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 cause a copy of the order to be delivered to all relevant law enforcement agencies and courts. The order shall prohibit all relevant law enforcement agencies and courts from releasing copies of such records to any person, except upon order of the court.

SECTION 4. 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.

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. 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 for the conviction may petition the district court within the time periods provided in this section for an order to expunge 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 minors or children, a sex offense or an offense involving driving while under the influence of intoxicating liquor or drugs.

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

SECTION 6. 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. EFFECT OF AN ORDER TO EXPUNGE.--Upon entry of 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, 2012.

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