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, NMSA 1978, Sections 29- 3A-1 to -9, except expungement of cannabis arrest and public records, which are automatic under NMSA 1978, Section 29-3A-8. 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 NMSA 1978, Section 29-3A-3 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 NMSA 1978, Section 29-3A-4 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 NMSA 1978, Section 29-3A-5 shall be filed in the district court in the county in which petitioner’s conviction was entered. (4) 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), or Form 4-953 NMRA (expungement of arrest records and public records upon conviction), 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 the 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 NMSA 1978, Section 29-3A-3 (expungement of records upon identity theft) or NMSA 1978, Section 29-3A-4 (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 NMSA 1978, Section 29-3A-5 (expungement of records upon conviction), the court shall hold a hearing to determine whether petitioner has established that the requirements of NMSA 1978, Section 29-3A-5(C) have 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 lower 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. If there are related records maintained at an appellate court, the order shall be served on the appellate court and should identify the related appellate court case. On receipt of the order, the appellate court shall review the order and expunge the requested records, if appropriate. M. Mandatory Forms. The use of Forms 4-951 to -960.3 NMRA, as appropriate, is mandatory in expungement proceedings. [Provisionally adopted by Supreme Court Order No. 21-8300-033, effective for all cases filed or pending on or after January 28, 2022; provisionally adopted rule approved as amended by Supreme Court Order No. S-1-RCR-2024-00099, effective for all cases pending or filed on or after December 31, 2025.]