N.M. R. Civ. P. Dist. Ct. 1-077.1

As amended through August 23, 2024

Rule 1-077.1 - Expungement

A.Scope of Rule. This rule governs proceedings for expungement of arrest and public records under the Criminal Record Expungement Act, Sections 29-3A-1 to -9 NMSA 1978.

B.Commencement of Action. An expungement proceeding is commenced by filing a civil petition in the appropriate district court as follows:

(1) A petition seeking expungement of arrest records or public records wrongfully identifying a person therein as a result of identity theft under Section 29-3A-3 NMSA 1978 shall be filed in the district court of the county where the charges originated, or the arrest occurred, or where a conviction was entered.

(2) A petition seeking expungement of arrest records and public records where there is no conviction under Section 29-3A-4 NMSA 1978 shall be filed in the district court for the county where the charges originated or the arrest occurred.

(3) An action seeking expungement of records upon conviction under Section 29-3A-5 NMSA 1978 shall be filed in the district court in the county in which petitioner's conviction was entered.

(4) An action seeking expungement of an arrest, release without conviction, or conviction of a charge that the petitioner believes is legally invalid due to the passage of the Cannabis Regulation Act and is eligible for automatic expungement under Section 29-3A-8 NMSA 1978, which automatic expungement has not occurred, shall be filed in the district court in which the arrest occurred, the charges were originally filed, or the conviction was entered. There shall be no filing fee for an action commenced under the automatic expungement provisions of Section 29-3A-8.

(5) A petition to expunge may contain a request to expunge arrest records and public records pertaining to any number of arrests, criminal charges filed without arrest, and/or convictions in a single judicial district.

C.Sealing of Petition. A petition for expungement of records upon release without conviction shall be filed under seal and subject to the requirements of Rule 1-079 NMRA and the provisions of this rule. If the petition seeks both expungement of records upon conviction and expungement of records upon release without conviction, the district court shall treat the petition as one filed for expungement of records upon conviction and the petition shall not be subject to Rule 1-079 NMRA.

D.Contents of Petition. A petition for expungement shall conform with the requirements of Form 4-951 NMRA (expungement of arrest records and public records upon identity theft), Form 4-452 NMRA (expungement of arrest records and public records upon release without conviction), Form 4-953 NMRA (expungement of arrest records and public records upon conviction), or Form 4-954 NMRA (automatic expungement of arrest records and public records), the use of which are mandatory in expungement proceedings.

E.Service. Service of the petition and attachments thereto is only required in cases seeking expungement of records upon release without conviction and upon conviction.

(1) A petition for expungement of records upon release without conviction and all attachments thereto shall be served upon:

(a) the district attorney for the county in which the arrest was made or the criminal charge or proceeding filed; and

(b) the New Mexico Department of Public Safety.

(2) A petition for expungement of records upon conviction and all attachments thereto shall be served upon:

(a) the district attorney for the county in which the conviction was entered;

(b) the New Mexico Department of Public Safety; and

(c) the law enforcement agency that arrested petitioner.

(3) Service under this section is made by first-class United States mail. Petitioner shall file a certificate of service with the district court.

(4) Subsequent pleadings shall be served in accordance with Rules 1-005, 1-005.1, or 1-005.2 NMRA.

F.Court action upon insufficient petition. If the court concludes that the initial petition does not comply with the provisions of this rule and the applicable form, the court may enter an order granting the petitioner leave to file a proper amended petition within sixty (60) days from entry of the order. If the petition fails to comply with the order or this rule, the court may dismiss the petition without prejudice.

G.Response.

(1) Within sixty (60) days from service of the petition, the parties entitled to notice of the proceeding by way of service of the petition, as identified in Paragraph E of this rule, shall file and serve specific objections (Form 4-957 NMRA) or shall file a Notice of Non-Objection (Form 4-958 NMRA). A responding party filing and serving a Notice of Non-Objection shall be excused from further participation in the proceeding.

(2) If a party objects to a petition for expungement of arrest records or public records without conviction on the basis of the contents of petitioner's Federal Bureau of Investigation's record of arrests and prosecutions, the objecting party shall provide petitioner with a copy of the FBI Rap sheet, at no charge, at the time of filing the objection.

H.Notice of Completion of Briefing. For petitions seeking expungement of records upon release without conviction and upon conviction, petitioner must file a notice of completion of briefing (Form 4-959 NMRA (upon release without conviction) or Form 4-960 NMRA (upon conviction)) after expiration of the objection period set forth in Paragraph G of this rule. Petitioner shall serve the notice of completion of briefing on all parties that have filed an objection.

Petitioner shall attach completed Form 4-960.2 NMRA (affirmation in support of expungement of records, upon release without conviction) or Form 4-960.3 NMRA (affirmation in support of expungement of records, upon conviction) to the notice of completion of briefing. If Form 4-960.2 or Form 4-960.3 contains information regarding arrests, charges without arrest, and/or convictions that occurred subsequent to the filing of the petition, the parties shall have twenty (20) days after service of the notice of completion of briefing and attachments thereto to file additional objections to the petition for expungement.

I.Burden of Proof. Petitioner bears the burden of proving the requirements for statutory expungement.

J.Hearings. No hearing on the merits will be set in an expungement action prior to the filing and service of the notice of completion of briefing as set forth in Paragraph H of this rule.

If the petition is filed under Section 29-3A-3 NMSA 1978 (expungement of records upon identity theft) or Section 29-3A-4 NMSA 1978 (expungement of records upon release without conviction) and no objections to the petition are filed, the court may decide the petition on the pleadings and affirmation (if applicable) without a hearing.

If the petition is filed under Section 29-3A-8 NMSA 1978, the court may decide the petition on the pleadings without a hearing.

If the petition is filed under Section 29-3A-5 NMSA 1978 (expungement of records upon conviction), the court shall hold a hearing to determine whether petitioner has established that the requirements of Section 29-3A-5(C) NMSA 1978have been met.

Any party wishing to participate in any hearing by telephonic or other electronic means, may do so by giving notice to the court and the other parties as provided for in the petition and objection forms. A motion and order for telephonic or electronic appearance shall not be required. The court may order any party to attend a hearing in-person.

K.Orders. When there is a hearing on a petition for expungement, the court shall issue an order within sixty (60) days of the hearing. Any order requiring the expungement of arrest and public records shall allow a minimum of sixty (60) days to complete the expungement. Any order granting a petition shall require that the civil expungement proceeding be expunged. The court shall not expunge court records earlier than 30-days from entry of its order of expungement.

L.Service of Orders on the Merits. On granting a petition for expungement, the court shall cause a copy of an order on a petition for expungement 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 the records to any persons, except as authorized by the Criminal Records Expungement Act, or on order of the court.

M.Mandatory Forms. The use of Forms 4-951 to -960.3 NMRA, as appropriate, is mandatory in expungement proceedings.

N.M. R. Civ. P. Dist. Ct. 1-077.1

Provisionally adopted by Supreme Court Order No. 21-8300-033, effective for all cases pending or filed on or after 1/28/2022.

Committee Commentary.-

2021 Amendment to Rule 1-004 NMRA

The Supreme Court has concluded that in the context of proceedings under the Criminal Record Expungement Act, NMSA 1978, Sections 29-3A-1 to -9 (2019, as amended 2021), if the petitioner serves notice of the petition as required by Paragraph F of Rule 1-077.1 NMRA and subsequently affirms that service was made in accordance with this rule, see Form 4-955 NMRA (certificate of service, expungement of records upon release without conviction) or Form 4-956 NMRA (certificate of service, expungement of records upon conviction), such service satisfies the requirements of due process because the recipients of the notice must either file objections or file a "Notice of Non-Objection" before the district court holds a hearing pursuant to Section 29-3A-4(E) or Section 29-3A-5(C).

Section 29-3A-3(D) (expungement of records upon identity theft); due process issue

Section 29-3A-3(D) provides that "After notice to and a hearing for all interested parties and in compliance with all applicable law, the court shall insert in the records the correct name and other identifying information of the offender, if known or ascertainable, in lieu of the name of the person wrongly identified." Identity theft is a crime. See, e.g., NMSA 1978, § 30-16-24.1(2009) (theft of identity; obtaining identity by electronic fraud). It would be a violation of due process for the court in a civil proceeding to publicly declare that it found a person guilty of the crime of identity theft and to identify in public records the name and identifying information of the offender, particularly when the statute does not require notice of the proceeding be given to the alleged wrongdoer. For this reason, Rule 1-077.1 omits requirements related to the statutory provision quoted above.

Rule 1-077.1(G)

Rule 1-077.1(G) provides that parties entitled to notice of these proceedings must file and serve specific objections or a Notice of Non-Objection within sixty days of service of the petition. This time limit is contrary to Section 29-3A-4(B), which provides for a thirty-day response time for filing objections to a petition seeking expungement of records upon release without conviction. Rule 1-077.1(G) controls because the Supreme Court can modify a procedural provision in a statute by adopting a contrary rule. Lovelace Med. Ctr. v. Mendez, 1991-NMSC-002, ¶ 15, 111 N.M. 336, 805 P.2d 603 ("[L]egislative rules relating to pleading, practice and procedure in the courts, particularly where those rules relate to court management or housekeeping functions, may be modified by a subsequent rule promulgated by the Supreme Court.); see also id. ¶ 10 ("[T]here are good reasons for construing [statutory time limits] simply as the legislative adoption of a housekeeping rule to assist the courts with the management of their cases, [which] have effect unless and until waived by a court in a particular case or modified by a rule of this Court on the same subject.").

Rule 1-077.1(J)

Rule 1-077.1(J) provides that if no objections are filed, the district court may decide a petition for expungement of records upon identity theft, § 29-3A-3, or for expungement of records upon release without conviction, § 29-3A-4, without a hearing. This conflicts with Section 29-3A-3(B), which provides that the district court shall issue an order "after a hearing" on a petition for expungement of records upon identity theft and with Section 29-3A-4(E), which provides likewise in the context of a petition for expungement of records upon release without conviction. Rule 1-077.1(J) controls because the Supreme Court can modify a procedural provision in a statute by adopting a contrary rule. Lovelace Med. Ctr., 1991 -NMSC-002, ¶ 15 ("[L]egislative rules relating to pleading, practice and procedure in the courts, particularly where those rules relate to court management or housekeeping functions, may be modified by a subsequent rule promulgated by the Supreme Court.).

Rule 1-077.1(K)

Rule 1-077.1(K) provides that the district court shall issue an order within sixty (60) days of an expungement hearing. This time limit is contrary to Section 29-3A-4(E) and Section 29-3A-5(C), which require the district court to issue an order within thirty (30) days of certain expungement hearings. For the reasons stated above in the committee commentary to Rule 1-077.1(G), the time limits in Rule 1-077.1(K) control.

Provisionally adopted by Supreme Court Order No. 21-8300-033, effective for all cases pending 15 or filed on or after January 28, 2021.