I am a foreigner under a working visa in New Mexico. Almost 3 years ago I was arrested and taken to jail for shoplifting ($25,84). I plead not guilty and my case was dismissed. Could I ask for an expungement of my record? This the only crime I eve ...

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I am a foreigner under a working visa in New Mexico. Almost 3 years ago I was arrested and taken to jail for shoplifting ($25,84). I plead not guilty and my case was dismissed. Could I ask for an expungement of my record? This the only crime I ever committed in my life and I fear I could be denied future visas.

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DakotaLegal's picture

 

 
Perhaps, you can get an expungement. Oddly enough, though, New Mexico actually has very few rules to allow for exactly what you are asking to do in terms of “expunging” your arrest record. Let me show you some of the state’s laws you’ll need to look at, to start the process, and also to explain part of the problem. Arrest records are clearly allowed to be changed to be corrected (what might amount to being an expungement) in New Mexico, only under a few situations. For example, only if there was a mistake in your arrest record. Here’s the statute: § 29-10-1 to -8, Arrest Records Information Act (ARIA), NMSA 1978.
 
You may end up needing the help of a lawyer, and if cost is an issue, I’d suggest you try the New Mexico Bar’s “Pro Bono” program: http://apps.americanbar.org /legalservices/probono/directory/newmexico.html.
 
New Mexico is only one of three states that basically have no regular expungement process. But that does not mean you cannot get the expungement done. Even better, you can make an argument that the information is not to be released under that existing New Mexico ARIA law, which says:
 
“Arrest record information that reveals confidential sources, methods, information or individuals accused but not charged with a crime and that is maintained by the state or any of its political subdivisions pertaining to any person charged with the commission of any crime is confidential and dissemination or revealing the contents of the record, except as provided in the Arrest Record Information Act [29-10-1 NMSA 1978] or any other law, is unlawful.” http://www.lawserver.com/law/state/new-mexico/nm-statutes/new_mexico_statutes_29-10-4.
 
To be sure, there are exceptions. If you apply for sensitive work, requiring FBI clearance, or want to work with a police agency, this information can be reviewed. The key is that there are severe limits on any release of your arrest record to third parties. So, for example, most employers would not see your arrest record. The question left open, however, is how do you answer an employer who may try to ask you about being arrested before? It may be tempting to say “no,” believing it won’t be released. This is why so many people will want an expungement, because they should be able to answer honestly “no.”
 
Only an expungement will get you to a completely honest, safe place. This is especially important in your case, since you said you have a desire to avoid making any false statements in a future visa/residency request.
 
I’d like you to look at a New Mexico court case, where someone filed a request for an expungement. http://caselaw.findlaw.com/nm-court-of-appeals/1213512.html. This case suggested there might be (even without a specific New Mexico law) an “inherent” power in a court to expunge a record. Though in that case the court refused to expunge, there was an important difference with your case…there was no certainty about innocence in that case. You say you plead not guilty: this may be the key factor. But the court also said it would take “extraordinary” circumstances to expunge the arrest record.
 
New Mexico has recently talked about making improvements in the expungement of arrests. This bill (http://www.nmlegis.gov/Sessions/12%20Regular/ bills/ senate/SB0002.pdf ) was introduced by Senator Michael Sanchez, who can be reached through the New Mexico Senate…http://www.nmsenate.com/. They can get you up to date on current rules.
 

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DakotaLegal's picture

 

 
Perhaps, you can get an expungement. Oddly enough, though, New Mexico actually has very few rules to allow for exactly what you are asking to do in terms of “expunging” your arrest record. Let me show you some of the state’s laws you’ll need to look at, to start the process, and also to explain part of the problem. Arrest records are clearly allowed to be changed to be corrected (what might amount to being an expungement) in New Mexico, only under a few situations. For example, only if there was a mistake in your arrest record. Here’s the statute: § 29-10-1 to -8, Arrest Records Information Act (ARIA), NMSA 1978.
 
You may end up needing the help of a lawyer, and if cost is an issue, I’d suggest you try the New Mexico Bar’s “Pro Bono” program: http://apps.americanbar.org /legalservices/probono/directory/newmexico.html.
 
New Mexico is only one of three states that basically have no regular expungement process. But that does not mean you cannot get the expungement done. Even better, you can make an argument that the information is not to be released under that existing New Mexico ARIA law, which says:
 
“Arrest record information that reveals confidential sources, methods, information or individuals accused but not charged with a crime and that is maintained by the state or any of its political subdivisions pertaining to any person charged with the commission of any crime is confidential and dissemination or revealing the contents of the record, except as provided in the Arrest Record Information Act [29-10-1 NMSA 1978] or any other law, is unlawful.” http://www.lawserver.com/law/state/new-mexico/nm-statutes/new_mexico_statutes_29-10-4.
 
To be sure, there are exceptions. If you apply for sensitive work, requiring FBI clearance, or want to work with a police agency, this information can be reviewed. The key is that there are severe limits on any release of your arrest record to third parties. So, for example, most employers would not see your arrest record. The question left open, however, is how do you answer an employer who may try to ask you about being arrested before? It may be tempting to say “no,” believing it won’t be released. This is why so many people will want an expungement, because they should be able to answer honestly “no.”
 
Only an expungement will get you to a completely honest, safe place. This is especially important in your case, since you said you have a desire to avoid making any false statements in a future visa/residency request.
 
I’d like you to look at a New Mexico court case, where someone filed a request for an expungement. http://caselaw.findlaw.com/nm-court-of-appeals/1213512.html. This case suggested there might be (even without a specific New Mexico law) an “inherent” power in a court to expunge a record. Though in that case the court refused to expunge, there was an important difference with your case…there was no certainty about innocence in that case. You say you plead not guilty: this may be the key factor. But the court also said it would take “extraordinary” circumstances to expunge the arrest record.
 
New Mexico has recently talked about making improvements in the expungement of arrests. This bill (http://www.nmlegis.gov/Sessions/12%20Regular/ bills/ senate/SB0002.pdf ) was introduced by Senator Michael Sanchez, who can be reached through the New Mexico Senate…http://www.nmsenate.com/. They can get you up to date on current rules.