Can a DUI be expunged in New Mexico?

Whether a DUI can be cleared at all

A DWI conviction is one of the offenses the Criminal Record Expungement Act leaves out. The Judiciary's expungement information lists convictions that cannot be expunged and names an offense involving driving while under the influence of intoxicating liquor or drugs among them, matching the exclusion in the Act's provision on expungement of records upon conviction. The separate route for a person released without conviction, which covers an acquittal, a nolle prosequi or other dismissal, a referral to a preprosecution diversion program, a conditional discharge under Section 31-20-13 NMSA 1978, or proceedings otherwise discharged, carries no such carve-out and may be used one year after final disposition.

“CONVICTIONS INELIGIBLE FOR EXPUNGEMENT. Convictions and records related to convictions for the following offenses cannot be expunged: ... You were convicted of an offense involving driving while under the influence of intoxicating liquor or drugs.”

The driving record is a separate record

This is the part most summaries leave out. A court can seal or expunge the criminal case and the licensing agency can still keep the DUI on the driver record, where it reaches insurers and counts as a prior offence if there is a second one.

Not cleared. The Motor Vehicle Division states that a DWI issued from June 17, 2005 to the present stays on the driver's record for 55 years, with longer or shorter periods for older citations. Expungement would not reach it in any event: the Criminal Record Expungement Act defines the arrest records that an order can clear and expressly excludes driving while intoxicated citations maintained by the taxation and revenue department, the department that houses the Motor Vehicle Division.

“How long does a DWI stay on my record? A DWI will stay on the driving record according to the date the citation was issued: ... July 1, 1990 through June 16, 2005 - 25 years; June 17, 2005 through present - 55 years”

What else sits on that record: suspensions and points in New Mexico.

How long the wait is, and from when

One year from the date of the final disposition, and only where the case ended without a conviction. A DWI conviction has no waiting period because the conviction route is closed to it. For offenses the conviction route does cover, the Act sets two years for a municipal ordinance violation or a misdemeanor, four years for a fourth degree felony or misdemeanor aggravated battery, six years for a third degree felony, eight years for a second degree felony and ten years for a first degree felony or an offense under the Crimes Against Household Members Act, measured from the last date the person completed a sentence for a conviction in any jurisdiction.

“A. One year from the date of the final disposition in the case, a person released without conviction for a violation of a municipal ordinance, misdemeanor or felony may petition the district court in the district in which the charges against the person originated for an order to expunge arrest”

Automatic or by petition

New Mexico has no Clean Slate law covering convictions generally; expungement under the Criminal Record Expungement Act requires a petition to the district court, with notice to the district attorney, the Department of Public Safety and the arresting agency, followed by a hearing. The one automatic strand is cannabis: the Judiciary operates an application process for expunging court records involving cannabis and refers to an automatic expungement process for cannabis-related charges. Neither reaches a DWI conviction.

“If your case is not eligible for automatic expungement process for cannabis-related charges it could still be eligible for expungement. There are two additional expungement processes: one for charges and records associated with a previous conviction, and another for charges and records from cases”

Where it is filed, and what it costs

The petition is filed with the district court clerk with a $132.00 filing fee; a person unable to pay completes an Application for Free Process and Affidavit of Indigency, Form 4-222 NMRA. Notice goes to the district attorney for the district, the Department of Public Safety and the arresting law enforcement agency, each of which may object, and the court issues its order within thirty days of the hearing. Arrest record information for the petition is obtained from the Department of Public Safety through its Authorization for Release of Information form, for a fee of $15.00 per record. The petition itself and everything filed with it are sealed, whether or not the petition is granted.

“FEES. You must pay the District Court Clerk a filing fee of $132.00 at the time you file your petition. Most courts require filing fees be paid with a money order, not your personal check or credit/debit card. If you are unable to pay, you must complete an Application for Free Process and Affidavit”

Whether a cleared DUI still counts as a prior

Expunged records are kept and can be used again. The Judiciary states that courts, law enforcement agencies and other criminal justice agencies always have access to expunged records, that the records are not destroyed, and that arrest or conviction records may still be available for use in any future criminal proceeding. Anyone else who asks must be told that no such record exists with respect to the person.

“EFFECT OF EXPUNGEMENT. The courts, law enforcement agencies, and other criminal justice agencies will always have access to your records, even after expungement. The records are not destroyed. ... Arrest or conviction records may still be available for use in any future criminal proceedings.”

The statute: NMSA 1978, §§ 29-3A-1 to 29-3A-9 (Criminal Record Expungement Act), exclusion at § 29-3A-5(G)

“G. The provisions of Subsection A of this section do not apply to an offense committed against a child, an offense that caused great bodily harm or death to another person, a sex offense as defined in Section 29-11A-3 NMSA 1978, embezzlement pursuant to Section 30-16-8 NMSA 1978 or an offense”