Why DWI Convictions Are Not Eligible For Expungement in New Mexico

In Expungement of a Criminal Record, White Collar Criminal Defense by Larry DonahueLeave a Comment

The intent within the new expungement law in New Mexico is to “serve justice”.  Justice is not served by erasing the criminal record of serious criminals or those who may be likely to re-offend.  Alternatively, it also doesn’t serve justice that those who have made a mistake, taken responsibility for it and have avoided trouble since, continue to suffer a criminal stigma indefinitely.  Therefore, our lawmakers strived to create balance between the two when creating this law.  It’s also important to note a few other things about the expungement law.  First and foremost, simply qualifying for an expungement doesn’t guarantee you will get one. The process requires the filing of paperwork and a court appearance.  A Judge must feel confident that when awarding an expungement, justice is, in fact being served; for both the individual and society.  The merits of each case will be taken into consideration. The intent of the new law is not meant to be a “do-over” for everyone in New Mexico who has ever been charged or convicted of a crime.   

Who is eligible for expungement?

So, let’s explore briefly who does qualify to request an expungement in New Mexico as of January 1, 2020.  The first category is for those who are the victims of identity theft; meaning that someone has committed crimes using an identity other than their own.  You can imagine how upsetting and frightening it would be to be arrested, denied the right to vote or the ability to take out a loan all because someone stole your information and while posing as you, and broke the law. The second category are those arrested, but not charged for a crime. (Records that deal with driving while intoxicated citations maintained by the taxation and revenue department; computer-aided dispatch information and logbooks relating to breath alcohol testing equipment are not eligible for expungement by the new law.)   The third category of records that are eligible for expungement deal with individuals who were charged with certain criminal offenses.  Providing these individuals served their time, paid their fines and have remained out of trouble since, then, they may be eligible for an expungement after a certain amount of time has passed. 

What is not eligible for expungement?

As mentioned, only certain criminal records are eligible.  Expungement in New Mexico is not available for offenses committed against a child, an offense that caused great bodily harm or death to another person, a sex offense as defined in Section 29-1 IA-3 NMSA 1978, embezzlement pursuant to Section 30-16-8 NMSA 1978 or an offense involving driving while under the influence of intoxicating liquor or drugs. DWI convictions are not eligible to be expunged even if the person who was convicted served their time, paid their fines and did not repeat the violation,  While the necessity of the record remaining may seem overburdensome or even cruel to citizens in such a situation, the passing of time and one’s diligence to remain out of trouble is the best evidence as to who one has truly have become today.

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