How Can I Get A Felony DWI Conviction Expunged In New Mexico
Full Question:
Answer:
Generally, in order for records connected to a DWI in New Mexico to be expunged, it would have to be a conviction for a misdemeanor offense and the records of the outcome have been lost. In that case, the arrest records can be expunged. Also, expungement is possible if the conviction was reversed.
Please see the following NM statutes for applicability:
29-3-8.1. Petition to expunge arrest information.
A. A person may petition the department to expunge arrest information
on the person's state record or federal bureau of investigation record if
the arrest was for a misdemeanor or petty misdemeanor offense and the
arrest was not for a crime of moral turpitude. If the department cannot
locate a final disposition after contacting the arresting law enforcement
agency, the administrative office of the courts and the administrative
office of the district attorneys, the department shall expunge the arrest
information.
B. As used in this section:
(1) "expunge" means to remove a notation of an arrest placed on a
person's state record or federal bureau of investigation record; and
(2) "final disposition" means a final outcome following arrest,
including nolle prosequi, a dismissal, a decision to not file charges, a
referral to a pre-prosecution diversion program, placement on probation
or imposition of a fine.
32A-3B-21. Expungement of records.
A. On motion by or on behalf of an individual who has been the subject
of a petition filed under the Children's Code, or on the court's own
motion, the court shall vacate its findings, orders and judgments on the
petition, and order the legal and social files and records of the court,
the department and any other agency in the case expunged, and if
requested in the motion the court shall also order law enforcement files
and records expunged. An order expunging records and files shall be
entered if the court finds that:
(1) two years have elapsed since the final release of the individual
from legal custody and supervision or two years have elapsed since the
entry of any other judgment not involving legal custody or supervision;
and
(2) the individual has not, within the two years immediately prior to
filing the motion, been convicted of a felony or of a misdemeanor
involving moral turpitude or found delinquent by a court, and no
proceeding is pending seeking such a conviction or finding.
B. Reasonable notice of the motion shall be given to:
(1) the children's court attorney;
(2) the authority granting the release if the final release was from
an agency, parole or probation;
(3) the law enforcement officer, department and central depository
having custody of the law enforcement files and records if those records
are included in the motion; and
(4) any other agency having custody of records or files subject to
the expungement order.
C. Upon the entry of the expungement order, the proceedings in the case
shall be treated as if they never occurred, and all index references
shall be deleted and the court, law enforcement officers and departments
and agencies shall reply, and the individual may reply, to an inquiry
that no record exists with respect to such person. Copies of the
expungement order shall be sent to each agency or official named in the
order.
D. Any finding of delinquency or conviction of a crime, subsequent to
the expungement order may at the court's discretion be used by the court
as a basis to set aside the expungement order.
E. A person who has been the subject of a petition filed under the
Children's Code shall be notified of the right to have records expunged.
30-31-28. Conditional discharge for possession as first offense.
A. If any person who has not previously been convicted of violating the
laws of any state or any laws of the United States relating to narcotic
drugs, marijuana, hallucinogenic or depressant or stimulant substances,
is found guilty of a violation of Section 23, after trial or upon a plea
of guilty, the court may, without entering a judgment of guilty and with
the consent of the person, defer further proceedings and place him on
probation upon reasonable conditions and for a period, not to exceed one
year, as the court may prescribe.
B. Upon violation of a condition of the probation, the court may enter
an adjudication of guilt and proceed as otherwise provided. The court
may, in its discretion, dismiss the proceedings against the person and
discharge him from probation before the expiration of the maximum period
prescribed from the person's probation.
C. If during the period of his probation the person does not violate
any of the conditions of the probation, then upon expiration of the
period the court shall discharge such person and dismiss the proceedings
against him. Discharge and dismissal under this section shall be without
court adjudication of guilt, but a nonpublic record shall be retained by
the attorney general solely for the purpose of use by the courts in
determining whether or not, in subsequent proceedings, the person
qualifies under this section. A discharge or dismissal shall not be
deemed a conviction for purposes of disqualifications or disabilities
imposed by law upon conviction of a crime including the penalties
prescribed under this section for second or subsequent convictions or for
any other purpose. Discharge and dismissal under this section may occur
only once with respect to any person.
D. Upon the dismissal of a person and discharge of the proceedings
against him under this section, a person, if he was not over eighteen
years of age at the time of the offense, may apply to the court for an
order to expunge from all official records all recordation relating to
his arrest, indictment or information, trial, finding or plea of guilty,
and dismissal and discharge pursuant to this section except nonpublic
records filed with the attorney general. If the court determines, after
hearing, that the person was dismissed and the proceedings against him
discharged and that he was not over eighteen years of age at the time of
the offense, it shall enter the order. The effect of the order shall be
to restore the person, in the contemplation of the law, to the status he
occupied before the arrest or indictment or information. No person in
whose behalf an order has been entered shall be held thereafter under any
provision of any law to be guilty of perjury or otherwise giving a false
statement by reason of his failures to recite or acknowledge such
arrest, or indictment or information, or trial in response to any inquiry
made of him for any purpose.
66-8-102. Persons under the influence of intoxicating
liquor or drugs; aggravated driving while under the
influence of intoxicating liquor or drugs; penalty.
A. It is unlawful for a person who is under the influence of
intoxicating liquor to drive a vehicle within this state.
B. It is unlawful for a person who is under the influence of
any drug to a degree that renders the person incapable of
safely driving a vehicle to drive a vehicle within this
state.
C. It is unlawful for:
(1) a person to drive a vehicle in this state if the person
has an alcohol concentration of eight one hundredths or more
in the person's blood or breath within three hours of
driving the vehicle and the alcohol concentration results
from alcohol consumed before or while driving the vehicle;
or
(2) a person to drive a commercial motor vehicle in this
state if the person has an alcohol concentration of four one
hundredths or more in the person's blood or breath within
three hours of driving the commercial motor vehicle and the
alcohol concentration results from alcohol consumed before
or while driving the vehicle.
D. Aggravated driving while under the influence of
intoxicating liquor or drugs consists of a person who:
(1) drives a vehicle in this state and has an alcohol
concentration of sixteen one hundredths or more in the
person's blood or breath within three hours of driving the
vehicle and the alcohol concentration results from alcohol
consumed before or while driving the vehicle;
(2) has caused bodily injury to a human being as a result of
the unlawful operation of a motor vehicle while driving
under the influence of intoxicating liquor or drugs; or
(3) refused to submit to chemical testing, as provided for
in the Implied Consent Act, and in the judgment of the
court, based upon evidence of intoxication presented to the
court, was under the influence of intoxicating liquor or
drugs.
E. A person under first conviction pursuant to this
section shall be punished, notwithstanding the provisions of
Section 31-18-13 NMSA 1978, by imprisonment for not more
than ninety days or by a fine of not more than five hundred
dollars ($500), or both; provided that if the sentence is
suspended in whole or in part or deferred, the period of
probation may extend beyond ninety days but shall not exceed
one year. Upon a first conviction pursuant to this section,
an offender shall be sentenced to not less than twenty-four
hours of community service. In addition, the offender may be
required to pay a fine of three hundred dollars ($300). The
offender shall be ordered by the court to participate in and
complete a screening program described in Subsection K of
this section and to attend a driver rehabilitation program
for alcohol or drugs, also known as a "DWI school", approved
by the bureau and also may be required to participate in
other rehabilitative services as the court shall determine
to be necessary. In addition to those penalties, when an
offender commits aggravated driving while under the
influence of intoxicating liquor or drugs, the offender
shall be sentenced to not less than forty-eight consecutive
hours in jail. If an offender fails to complete, within a
time specified by the court, any community service,
screening program, treatment program or DWI school ordered
by the court or fails to comply with any other condition of
probation, the offender shall be sentenced to not less than
an additional forty-eight consecutive hours in jail. Any
jail sentence imposed pursuant to this subsection for
failure to complete, within a time specified by the court,
any community service, screening program, treatment program
or DWI school ordered by the court or for aggravated driving
while under the influence of intoxicating liquor or drugs
shall not be suspended, deferred or taken under advisement.
On a first conviction pursuant to this section, any time
spent in jail for the offense prior to the conviction for
that offense shall be credited to any term of imprisonment
fixed by the court. A deferred sentence pursuant to this
subsection shall be considered a first conviction for the
purpose of determining subsequent convictions.
F. A second or third conviction pursuant to this
section shall be punished, notwithstanding the provisions of
Section 31-18-13 NMSA 1978, by imprisonment for not more
than three hundred sixty-four days or by a fine of not more
than one thousand dollars ($1,000), or both; provided that
if the sentence is suspended in whole or in part, the period
of probation may extend beyond one year but shall not exceed
five years. Notwithstanding any provision of law to the
contrary for suspension or deferment of execution of a
sentence:
(1) upon a second conviction, an offender shall be sentenced
to a jail term of not less than ninety-six consecutive
hours, not less than forty-eight hours of community service
and a fine of five hundred dollars ($500). In addition to
those penalties, when an offender commits aggravated driving
while under the influence of intoxicating liquor or drugs,
the offender shall be sentenced to a jail term of not less
than ninety-six consecutive hours. If an offender fails to
complete, within a time specified by the court, any
community service, screening program or treatment program
ordered by the court, the offender shall be sentenced to not
less than an additional seven consecutive days in jail. A
penalty imposed pursuant to this paragraph shall not be
suspended or deferred or taken under advisement; and
(2) upon a third conviction, an offender shall be sentenced
to a jail term of not less than thirty consecutive days, not
less than ninety-six hours of community service and a fine
of seven hundred fifty dollars ($750). In addition to those
penalties, when an offender commits aggravated driving while
under the influence of intoxicating liquor or drugs, the
offender shall be sentenced to a jail term of not less than
sixty consecutive days. If an offender fails to complete,
within a time specified by the court, any community service,
screening program or treatment program ordered by the court,
the offender shall be sentenced to not less than an
additional sixty consecutive days in jail. A penalty imposed
pursuant to this paragraph shall not be suspended or
deferred or taken under advisement.
G. Upon a fourth conviction pursuant to this section, an
offender is guilty of a fourth degree felony and,
notwithstanding the provisions of Section 31-18-15 NMSA 1978,
shall be sentenced to a term of imprisonment of eighteen
months, six months of which shall not be suspended, deferred
or taken under advisement.
H. Upon a fifth conviction pursuant to this section, an
offender is guilty of a fourth degree felony and,
notwithstanding the provisions of Section 31-18-15 NMSA 1978,
shall be sentenced to a term of imprisonment of two years,
one year of which shall not be suspended, deferred or taken
under advisement.
I. Upon a sixth conviction pursuant to this section, an
offender is guilty of a third degree felony and,
notwithstanding the provisions of Section 31-18-15 NMSA 1978,
shall be sentenced to a term of imprisonment of thirty
months, eighteen months of which shall not be suspended,
deferred or taken under advisement.
J. Upon a seventh or subsequent conviction pursuant to this
section, an offender is guilty of a third degree felony and,
notwithstanding the provisions of Section 31-18-15 NMSA 1978,
shall be sentenced to a term of imprisonment of three years,
two years of which shall not be suspended, deferred or taken
under advisement.
K. Upon any conviction pursuant to this section, an offender
shall be required to participate in and complete, within a
time specified by the court, an alcohol or drug abuse
screening program approved by the department of finance and
administration and, if necessary, a treatment program
approved by the court. The requirement imposed pursuant to
this subsection shall not be suspended, deferred or taken
under advisement.
L. Upon a second or third conviction pursuant to this
section, an offender shall be required to participate in and
complete, within a time specified by the court:
(1) not less than a twenty-eight-day inpatient, residential
or in-custody substance abuse treatment program approved by
the court;
(2) not less than a ninety-day outpatient treatment program
approved by the court;
(3) a drug court program approved by the court; or
(4) any other substance abuse treatment program approved by
the court.The requirement imposed pursuant to this subsection shall
not be suspended, deferred or taken under advisement.
M. Upon a felony conviction pursuant to this section, the
corrections department shall provide substance abuse
counseling and treatment to the offender in its custody.
While the offender is on probation or parole under its
supervision, the corrections department shall also provide
substance abuse counseling and treatment to the offender or
shall require the offender to obtain substance abuse
counseling and treatment.
N. Upon a conviction pursuant to this section, an offender
shall be required to obtain an ignition interlock license
and have an ignition interlock device installed and
operating on all motor vehicles driven by the offender,
pursuant to rules adopted by the bureau. Unless determined
by the sentencing court to be indigent, the offender shall
pay all costs associated with having an ignition interlock
device installed on the appropriate motor vehicles. The
offender shall operate only those vehicles equipped with
ignition interlock devices for:
(1) a period of one year, for a first offender;
(2) a period of two years, for a second conviction pursuant
to this section;
(3) a period of three years, for a third conviction pursuant
to this section; or
(4) the remainder of the offender's life, for a fourth or
subsequent conviction pursuant to this section.
O. Five years from the date of conviction and every five
years thereafter, a fourth or subsequent offender may apply
to a district court for removal of the ignition interlock
device requirement provided in this section and for
restoration of a driver's license. A district court may, for
good cause shown, remove the ignition interlock device
requirement and order restoration of the license; provided
that the offender has not been subsequently convicted of
driving a motor vehicle while under the influence of
intoxicating liquor or drugs. Good cause may include an
alcohol screening and proof from the interlock vendor that
the person has not had violations of the interlock device.
P. In the case of a first, second or third offense under
this section, the magistrate court has concurrent
jurisdiction with district courts to try the offender.
Q. A conviction pursuant to a municipal or county ordinance
in New Mexico or a law of any other jurisdiction, territory
or possession of the United States or of a tribe, when that
ordinance or law is equivalent to New Mexico law for driving
while under the influence of intoxicating liquor or drugs,
and prescribes penalties for driving while under the
influence of intoxicating liquor or drugs, shall be deemed
to be a conviction pursuant to this section for purposes of
determining whether a conviction is a second or subsequent
conviction.
R. In addition to any other fine or fee that may be imposed
pursuant to the conviction or other disposition of the
offense under this section, the court may order the offender
to pay the costs of any court-ordered screening and
treatment programs.
S. With respect to this section and notwithstanding any
provision of law to the contrary, if an offender's sentence
was suspended or deferred in whole or in part and the
offender violates any condition of probation, the court may
impose any sentence that the court could have originally
imposed and credit shall not be given for time served by the
offender on probation.
T. As used in this section:
(1) "bodily injury" means an injury to a person that is not
likely to cause death or great bodily harm to the person,
but does cause painful temporary disfigurement or temporary
loss or impairment of the functions of any member or organ
of the person's body; and
(2) "commercial motor vehicle" means a motor vehicle or
combination of motor vehicles used in commerce to transport
passengers or property if the motor vehicle:
(a) has a gross combination weight rating of more than
twenty-six thousand pounds inclusive of a towed unit with a
gross vehicle weight rating of more than ten thousand
pounds;
(b) has a gross vehicle weight rating of more than
twenty-six thousand pounds;
(c) is designed to transport sixteen or more passengers,
including the driver; or
(d) is of any size and is used in the transportation of
hazardous materials, which requires the motor vehicle to be
placarded under applicable law.