HB0260

HOUSE BILL 260

53rd legislature - STATE OF NEW MEXICO - second session, 2018

INTRODUCED BY

Daymon Ely and Antonio "Moe" Maestas

AN ACT

RELATING TO CRIMINAL RECORDS; ENACTING THE CRIMINAL RECORD EXPUNGEMENT ACT; PROVIDING AUTHORITY TO EXPUNGE A CRIMINAL RECORD UNDER CERTAIN CIRCUMSTANCES; REQUIRING RULEMAKING.

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 record":

(1) means a record that identifies a person under arrest or under investigation for a crime that is created or maintained by a law enforcement, jail, corrections facility or court official and that may include information obtained from the national crime information center or another criminal record database, photographs, fingerprints and booking sheets; and

(2) does not include:

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

(b) information from a computer-aided dispatch service; or

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

C. "public record" includes information posted on a publicly accessible court, corrections or law enforcement website and:

(1) means documentation that relates to:

(a) a person's arrest;

(b) a complaint or criminal information filed against a person;

(d) a criminal proceeding against a person;

(e) a person's plea, conviction or acquittal; or

(f) the dismissal or discharge of a criminal proceeding against a person; and

(2) does not include:

(a) an arrest record that: 1) is maintained by the state or any of its political subdivisions that relates to a person charged with the commission of any crime and that reveals confidential sources, methods or information or the identity of a person 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 for law enforcement purposes 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 that is confidential pursuant to state or federal law and that 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 a 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 that requires that all related 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 the law enforcement agencies and courts from releasing copies of the related arrest records and public records to any person, except upon order of the court.

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

A. One year after a criminal case against a person that alleged violation of a municipal ordinance or commission of a misdemeanor or felony offense is dismissed without a conviction, the person may petition the district court for an order to expunge the related arrest records and public records. B. After a hearing on the petition, the court shall issue an order within thirty days of the hearing that requires that all related arrest records and public records be expunged if the court finds that:

(1) no other criminal proceeding against the person is pending; and

(2) the case against the person was dismissed without a conviction due to:

(a) an acquittal or finding of not guilty;

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

(d) the proceedings otherwise being discharged.

SECTION 5. [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 to notify a person accused of a violation or offense of the person's rights pursuant to that act.

SECTION 6. [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 for records 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 7. 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 8. EFFECTIVE DATE.--The effective date of the provisions of this act is January 1, 2019.

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