New Mexico
Restoration of Rights & Record Relief

                                                                                                             

Last updated:  September 5, 2024

 Loss & restoration of civil/firearms rights

     A.  Vote/office/jury

Vote: Under the state constitution, qualified electors are eligible to vote  “except as restricted by statute . . . by reason of criminal conviction for a felony.   N.M. Const. art. VII, § 1.1   Effective July 1, 2023, a statutory provision canceling voter eligibility upon conviction was repealed, and another revised to make a person ineligible to vote only “while imprisoned in a correctional facility as part of a sentence for a felony conviction.” N.M. Stat. Ann. §§ 1-4-4,  § 1-4-27.1(A), revised by HB4.2 In addition, § 1-4-27.1(B) facilitates registration of those leaving prison:  

During the reentry phase of an inmate’s sentence, if the inmate is a voter or otherwise a qualified elector, the inmate shall be given an opportunity to register to vote or update an existing registration by means of a transaction with the motor vehicle division of the taxation and revenue department prior to the inmate’s release from custody.

Office: The right to hold state, county, or local office is lost upon conviction, and may be restored after completion of sentence by a pardon or restoration of rights from the governor, N.M. Stat. Ann. § 31-13-1.  See also United States v. Reese, 326 P.3d 454 (N.M. 2014) (completion of conditions of deferred sentence and discharge restores all civil rights).  Restoration of civil rights, including the right to hold office, is available from the governor for federal and out-of-state offenders.  See Lopez v. Kase, 126 N.M. 733 (1999). 

Jury: Persons convicted of a felony offense are ineligible for jury service until successful completion of all conditions of the sentence.  N.M. Stat. Ann. § 38-5-1. It is not clear whether completion requires payment of fines and other court debt. See note 1, supra. 

     B.  Firearms

It is unlawful for a person convicted of a felony to receive, transport or possess any firearm or destructive device for ten years after completion of sentence, including probation.  See N.M. Stat. Ann. § 30-7-16(A).  See also id. at (E)(3) (defining “felon” as someone for whom “less than ten years have passed since the person completed serving his sentence or period of probation for the felony conviction,” who has not been pardoned for the felony conviction, or who “has not received a deferred sentence”).  See also State v. Sundeen, 17 P.3d 1019, 1020 (N.M. 2001) (definition of “felon” requires that person have been convicted and sentenced to a year or more of imprisonment; court looks to the actual sentence imposed not the maximum sentence authorized under the statute).  Firearms rights are not lost if sentencing was deferred pursuant to § 31-20-9, and the person has successfully completed the period of deferment.  § 30-7-16(E)(3)(c).   

If lost, firearms rights may be regained prior to the ten-year period through a governor’s pardon, though the governor may also decline to restore firearms rights in an otherwise unconditional pardon.  See N.M. A.G. Op. No. 92-09 (1992).  The governor may, in his discretion, relieve individuals with New Mexico convictions from federal firearms disabilities as well as the provisions of § 30-7-16; however, the governor cannot release those convicted under federal law or by another state from federal firearms restrictions.  See id.; see also Beecham v. United States, 511 U.S. 368 (1994).  Those who successfully complete probation pursuant to a deferred adjudication disposition automatically regain civil rights, including firearms rights, and are thus not subject to federal prosecution under the federal firearms laws. United States v. Reese, No. 33,950, N.M. Sup. Ct. (May 1, 2014). However, even though gun rights are not lost under state law following a deferred sentence discharge, see § 30-7-16(E)(3)(c)(2), federal gun rights are lost under 18 U.S.C. § 921(g)(1) by virtue of a state deferred sentence following conviction, and they are not restored under § 921(a)(20).  See United States vs. Valerio, 441 F.3d 837, 841 (9th Cir. 2006).

    C.  Juvenile dispositions

Juvenile dispositions do not “impose any civil disabilities ordinarily resulting from conviction of a crime nor shall it operate to disqualify the child in any civil service application or appointment.”  N.M. Stat. Ann. § 32A-2-18(A).

II.  Pardon policy & practice

     A.  Authority

The pardon power rests exclusively with the governor.  N.M. Const. art. V, § 6 (“Subject to such regulations as may be prescribed by law, the governor shall have power to grant reprieves and pardons, after conviction for all offenses except treason and in cases of impeachment.”); see also N.M. Stat. Ann. § 31-13-1.  The governor’s power extends to all state offenses but does not include convictions for violations of municipal ordinances.  See Executive Clemency Guidelines § I, available on the State of New Mexico Governor’s website.  The general guidelines provide further information on pardons and other forms of clemency applied by Governor Michelle Lujan Grisham (revised Feb. 27, 2019). 

     B.  Administration

The New Mexico Parole Board is authorized to investigate requests for pardon, at the request of the governor.  N.M. Stat. Ann. § 31-21-17. The parole board consists of fifteen members appointed by the governor, with the consent of the senate, for six year teams. § 31-21-24.

     C.  Eligibility

Those who have completed their sentences and have been discharged from supervision may apply for a pardon to restore civil rights after an additional waiting period.  Executive Clemency Guidelines, supra § II.  Per the guidelines established by Governor Lujan Grisham in 2019, applications may be submitted for any offense, but “[o]rdinarily, pardon requests for applicants convicted of misdemeanors, DWI offenses, multiple felony convictions, sexual offenses, and violent offenses or physical abuse involving minor children will not be granted.”  Executive Clemency Guidelines § II.A3  Under these guidelines, applicants with a felony conviction must remain free from arrest for five to ten years following discharge from supervision, depending upon the seriousness of the offense.4  The Governor will not normally consider a case with successful completion of a suspended or deferred sentence, because the person has already had their rights restored in New Mexico by operation of law, but “if for some reason a completed suspended or deferred sentence causes a serious impairment to an individual’s liberty or constitutional rights that can be remedied through a pardon, the Governor will consider granting a pardon.”  Id.

     D.  Effect

A pardon restores rights of citizenship and relieves other legal disabilities under state law.  A pardon does not expunge arrest or conviction records, and does not preclude use of a conviction as a predicate offense to enhance a subsequent sentence.  Shankle v. Woodruff, 324 P.2d 1017, 1020-21 (N.M. 1958) (holding that pardon does not prevent use of a prior conviction for habitual offender sentencing).  “[A]pplicants seeking to restore the right to bear arms must specifically request this when applying” and “must then wait an additional year to apply for the right to bear arms.”  Executive Clemency Guidelines § II.A., n.10.  Regarding federal law, the Guidelines explain that “[a]lthough the Governor cannot commute a sentence imposed under federal law or restore an individual’s rights under federal law, the Governor may restore an individual convicted under federal law to full citizenship rights under New Mexico law.”  Id. § I.  

     E.  Process

The Executive Clemency Application Form (updated December 2021) is available on the governor’s website.  The process is spelled out in § IV of the Executive Clemency Guidelines (updated Jan. 7, 2022).  Certified court documents for the conviction and arrest reports must be submitted with the application. See Executive Clemency Application Instructions (updated December 2021).

Completed application forms must be submitted to the governor’s office by mail (not electronically), and the governor may then forward it to the Parole Board for investigation and recommendation.   The Parole Board will examine the request to determine whether it meets the criteria set forth in the guidelines; if not, the Parole Board will notify the applicant and the governor and no further action will be taken (however, Parole Board recommendations are not binding).  Otherwise, the Parole Board will call for a field investigation by the Corrections Department.  The Parole Board or the governor may also request input from the sentencing judge and/or prosecuting attorney.  After reviewing all materials, the governor will decide whether to grant clemency.  Applicants must include a letter stating the facts of the crime and the reasons for requesting pardon, arrest records, and certified court documentation.  See Application Form.  If an applicant is denied a pardon by the current or previous administration, the applicant is not eligible to reapply until two years following the date of the previous application.  Executive Clemency Guidelines, § IV.   

     F.  Criteria and standards

The 2019 guidelines call for a “holistic review” of each applicant’s case for pardon: 

Governor’s pardoning power should only be exercised when doing so is in the interests of justice and equity. In making this determination, the Governor employs a holistic review that gives due consideration to the nature of the underlying offense and the applicant’s role in the underlying offense, the impact of the crime on any victim(s) and society as a whole, and any other factors weighing on the fundamental fairness of granting a pardon to the applicant.  

Executive Clemency Guidelines § III.5   Applicants should include any significant achievements and evidence of good citizenship (i.e. charitable and civic contributions, voluntary community service activities, military service, and educational degrees or professional certificates), and the governor “will view favorably any civic contributions and educational accomplishments of applicants both prior to and after conviction.”  In addition, the governor will consider “whether the applicant has been a law-abiding citizen and a productive member of society after their conviction,” giving consideration will be given to consistent employment and lack of a criminal record after discharge, and the governor “will weigh whether the applicant has demonstrated personal growth.” Applicants should provide any information they feel “shows personal development and positive life changes since the commission of the offense” and any evidence that the applicant has “accepted responsibility, demonstrated remorse, or atoned for their offense(s).”  Voluntary participation in substance abuse, other treatment programs, and restorative justice initiatives will also be considered.  Id.

     G.  Frequency of grants

Pardons in the past have been relatively infrequent, but the practice of regular pardoning has been revived by Governor Michelle Lujan Grisham, who signaled a new approach to executive clemency shortly after taking office in 2019 with the issuance of guidelines calling for a “holistic” approach.  On June 29, 2020, a full year later, she issued her first 19 pardons, to individuals convicted of less serious offenses more than a decade before.  Two subsequent batches of grants brought her total by August 2021 to 50 pardons, some to individuals convicted of violent crimes.  Another six in 2022 brought her total to 56, primarily granted to persons convicted of nonviolent offenses.

Former Governor Susana Martinez issued just 3 pardons out of 255 requests in her eight years in office (2011-2019), and she denied 75 applications. Former Governor Bill Richardson issued 74 pardons out of 1,051 requests in his eight years in office (2003-2011).  (He also restored rights to one individual with a federal conviction, and he commuted one prison sentence.)  Former Governor Gary Johnson issued 113 pardons out of 1,304 requests in his eight years in office (1995-2003).  Sources: Governor’s Office and Jeff Proctor, Former Gov. Martinez stayed stingy with pardons to the end, New Mexico In Depth (Jan. 23, 2019).

III.  Expungement, sealing & other record relief

     A. Overview: 2019 expungement law and 2021 Uniform Act

In 2019, New Mexico enacted a comprehensive law authorizing expungement (sealing) of most non-conviction records, and of conviction records in all but the most serious violent and sexual crimes.  Effective January 1, 2020, the Criminal Record Expungement Act (CREA) authorizes courts to limit public access to all but a limited category of non-conviction records after a one-year waiting period, as long as no charges are pending against the individual.  Courts are also authorized to seal the record of most convictions after conviction-free waiting periods ranging from two to ten years, upon a finding that “justice will be served by an order to expunge.”  Upon taking effect, New Mexico’s CREA became one of the broadest record-closing authorities in the Nation.  See HB 370, codified at N. M. Stat. § 29-3A.

Prior to CREA’s enactment, New Mexico’s courts were authorized to seal records only of juvenile adjudications, of first drug offenses committed under the age of 18, or of crimes committed by victims of human trafficking (all three authorities survive the new law and are described below).6 Administrative authority to seal non-conviction records, which applies only to records of certain misdemeanors or petty misdemeanors, was repealed by the new law.7  Section 3 of CREA also repealed an existing authority for courts to seal records in cases involving identity theft, and replaces it with a more efficient authority.

In 2021, the legislature supplemented the 2019 expungement scheme by enacting the Uniform Collateral Consequences of Conviction Act, requiring collection of all mandatory collateral sanctions, providing judicial relief from such collateral consequences as early as sentencing, establishing standards for discretionary disqualification, and giving effect to relief from other states.  See Section C below. 

     B.  Expungement of conviction records  

Under § 29-3A-5(A), a “person convicted of a violation of a municipal ordinance, misdemeanor or felony, following the completion of the person’s sentence and the payment of any fines or fees owed to the state for the conviction, may petition the district court in which the person was convicted for an order to expunge arrest records and public records related to that conviction.”  Under § 29-3A-5(C)(4), a conviction-free eligibility waiting period of between two and ten years is required, depending on the seriousness of the offense, and all restitution must be paid.  Violations of municipal ordinances and all but the most serious misdemeanors must wait two years, while the waiting period for felonies ranges from four to ten years after completion of sentence, during which there can have been no new convictions.  Under § 29-3A-5(F), the waiting period “shall be measured from the last date on which a person completed a sentence for a conviction in any jurisdiction.” In other words, the conviction-free waiting period runs from completion of any sentence the individual may be serving. A few felony and misdemeanor offenses are ineligible for relief, including those involving a child, great bodily harm or death, sex, embezzlement, or driving under the influence of alcohol or drugs.  § 29-3A-5(G).

Expungement forms are available on the New Mexico Courts website: Expungement – New Mexico Courts (nmcourts.gov). Notice of the application must be given to the district attorney, the department of public safety,  and the arresting agency, and the court must hold a hearing within 30 days. The court “shall issue an order within thirty days of the hearing requiring that all arrest records and public records related to the conviction be expunged” if it finds that no other changes are pending against the petition, that victim restitution has been paid, and that “justice will be served by an order to expunge” after considering the following:

  • the nature and gravity of the offense or conduct that resulted in the petitioner’s conviction;
  • the petitioner’s age, criminal history, and employment history;
  • the length of time that has passed since the offense was committed and the related sentence was completed;
  • the specific adverse consequences the petitioner may be subject to if the petition is denied; and
  • any reasons to deny expungement submitted by the district attorney.

Effect of expungement  

“Expungement” is defined in § 29-3A-2 as “the removal from access to the general public of a notation of an arrest, complaint, indictment, information, plea of guilty, conviction, acquittal, dismissal or discharge record, including a record posted on a publicly accessible court, corrections or law enforcement internet website.”  § 29-3A-7 provides that

entry of an order to expunge, the proceedings shall be treated as if they never occurred, and officials and the person who received the order to expunge may reply to an inquiry that no record exists with respect to the person; provided that arrest or conviction records shall be disclosed by the person and officials in connection with any application for or query regarding qualification for employment or association with any financial institution regulated by the financial industry regulatory authority or the securities and exchange commission.

   C.  Uniform Collateral Consequences of Conviction Act

In 2021, New Mexico enacted most of the provisions of the Uniform Collateral Consequences of Conviction Act, supplementing the expungement scheme described in the following section. See 2021 Act 35, SB 183. Section 4 of the Act requires collection of all mandatory collateral sanctions and discretionary disqualification and publication on the internet. Section 5 requires defense counsel to notify their client about collateral consequences and the possible availability of relief in preliminary proceedings and prior to entering into a plea, and the court to confirm that such notice has been given; Section 6 requires the court to give such notice at sentencing, and custodial or supervisory personnel to give notice at the time of release, as well as the contact information for any government agencies and organizations “offering assistance to individuals seeking relief from collateral consequences.” Section 7 requires specific statutory authority for any mandatory collateral sanction, and Section 8 requires an “individualized assessment” and consideration of the “facts and circumstances” of the offense before imposing a discretionary disqualification. Section 9 considers what effect to give to convictions from other jurisdictions, and it gives effect to pardon and other relief from other jurisdictions (except for certain collateral consequences excepted under Section 11 of the Act). Importantly, it gives individuals convicted in other jurisdictions access to the specific “Order of Limited Relief” provided for in Section 10 of the Act. (See III, H. Order of Limited Relief below for more information.) 

The law is effective January 1, 2022, but will not affect imposition of a collateral consequence until six months after publication of the consequences provided for in Section 4.     

    D.  Automatic expungement of marijuana offenses

Per legislation enacted in conjunction with marijuana legalization in 2021, and extensively revised in 2023, if a person was charged with or convicted of an offense involving cannabis that is no longer a crime under the 2021 Cannabis Regulation Act (possession of 2 ounces or less) or that would have resulted in a lesser offense if that act had been in effect at the time of the offense (reduction of felony to misdemeanor) all public records related to the charge or conviction shall be automatically expunged two years after the conviction or, if there was no conviction, after the arrest. See N. M. Stat. § 29-3A-8, as amended in 2023 by HB314. The 2023 amendments to this law added a provision specifically extending automatic expungement to persons under the age of 18 at the time of arrest or conviction after the earlier of two years from the time of arrest or conviction or the date the person turns 18 years of age. Id.

The 2023 amendments also added a provision defining expungement under this section to require destruction of the public records involving cannabis and cannabis paraphernalia (as opposed to removal from all statewide criminal databases, as under the 2021 act and as expungement is generally understood in the state). Id.  The state supreme court was directed by the 2023 amendments to promulgate rules to implement the provisions of this section, including a procedure for persons charged with eligible offenses to verify that the public records have been expunged. Id. The New Mexico Courts have an online application for expungement of cannabis court records, available at: Expungement – New Mexico Courts (nmcourts.gov) 

     E.  Sealing for victims of human trafficking

On petition to the district court, a victim of human trafficking who has been “charged with crimes arising out of the actions of someone charged with human trafficking may have all legal and law enforcement records of the charges and convictions in the person’s case sealed,” as long as the “charge or conviction is for a non-homicide crime.” N.M. Stat. § 30-52-1.2.  The court must find that the “petitioner’s involvement in the offense was due to duress, coercion, use of force, threat to or fraud committed against the petitioner by a person who has committed human trafficking involving the petitioner,” and must give “reasonable notice of the petition” to the district attorney who filed the original case and the law enforcement agency with custody of the records. § 30-52-1.2(B).  “Upon the entry of the sealing order, the proceedings in the case shall be treated as if they never occurred and all index references shall be deleted.” § 30-52-1.2(C).   “Inspection of files and records or release of information in the records included in the sealing order may be permitted by the court only upon subsequent order of the court on a showing of good cause after notice to all parties to the original petition.”  § 30-52-1.2(D).

     F.  Expungement for diversionary dispositions

CREA authorized expungement of certain diversionary dispositions for the first time. The two primary types are described below.

Deferred imposition of sentence: N.M. Stat. Ann. § 31-20-3 provides for deferred imposition of sentence after a guilty plea (resulting in conviction under New Mexico law) for “any crime not constituting a capital or first degree felony,” and restoration of all civil rights upon discharge.   See United States v. Reese, 326 P.3d 454 (N.M. 2014)(completion of conditions and discharge restores all civil rights).  In Reese, the New Mexico Supreme Court stated that “[u]nder New Mexico Law, a dismissal order following the completion of a deferred sentence is effectively a legislatively created judicial pardon.”  326 P. 3d at [36].  Effective January 1, 2020, courts will have authority after a waiting period to expunge records in cases resulting in a discharge under this authority, under the provisions of § 5 of the Criminal Record Expungement Act of 2019, discussed above.  (Because this disposition is considered a conviction under New Mexico Law, the applicable waiting period is determined under § 5 rather than § 4, and other eligibility requirements and court findings also apply.)  

Gun rights are not lost under state law following a deferred sentence discharge, see § 30-7-16(E)(3)(c), but federal gun rights lost under 18 U.S.C. § 921(g)(1) by virtue of a state deferred sentence are not restored under § 921(a)(20).  See United States vs. Valerio, 441 F.3d 837, 841 (9th Cir. 2006).

Conditional discharge without judgment:  Conditional discharge without an adjudication of guilt is available, at the court’s discretion, after successful completion of probation in all cases except those involving a first degree felony so long as the person has no prior felony convictions.8  See N.M. Ann. § 31-20-3 (qualifying offenses); § 31-20-13 (conditional discharge authority).   “A conditional discharge order may only be made available once with respect to any person.”  § 31-20-13. 

Conditional discharge is also available for first-time drug offenders. § 30-31-28(C), and eligible for expungement if under 18 at the time of the offense.  Id. at (D). 

Courts have authority to expunge records in cases resulting in a conditional discharge under § 31-20-13, upon petition after a one-year waiting period, as long as no charges are pending. See  § 4 of the Criminal Record Expungement Act of 2019. discussed above.9.   

Though a conditional discharge does not result in an adjudication of guilt or a conviction, it may be used for subsequent habitual offender sentencing.  See § 31-18-17.  

     G.  Expungement of non-conviction records

The only pre-2020 authority for sealing non-conviction records authorized the State Department of Public Safety to seal records of certain misdemeanors or petty misdemeanors.  See N.M. Stat. Ann. § 29-3-8.1(a).  That authority was repealed by Section 8 of CREA.

Under § 4 of CREA, courts are authorized upon petition to expunge “records upon release without conviction,” which are defined to include acquittals, nolle prosequis or dismissals, a pre-prosecution referral to diversion under N.M. Ann. § 31-16A-1, an order of conditional discharge (see above), or any other discharge, including the conditional discharge without judgment described above.  (Note that it does not include a deferred imposition of sentence under N.M. Ann. § 31-20-3, discussed below, which constitutes a conviction under New Mexico law and must be addressed via § 5.)  A one-year waiting period applies, and no charges can be pending.  If a person is eligible, the court “shall” issue an expungement order within 30 days of the hearing on the petition. The only arrest records that may not be sealed are DUI citations and related police dispatch and breathalyzer records. 

For expungement of non-conviction records, the process is similar in that a petition is filed, and a hearing is held within thirty days. However, notice must be provided by first-class mail, but does not need to be sent to the law enforcement agency that arrested the petitioner. § 29-3A-4(B). Unlike hearings to expunge eligible convictions, there are no public interest considerations by the court, and it will be granted so long as no other charges or proceedings are pending. § 29-3A-4(E).

     H.  Sealing of juvenile records

Juvenile records are generally unavailable to the public. N.M. Stat. Ann. § 32A-2-32.  Sealing is available under N.M. Stat. § 32A-2-26.  Upon motion to the court made by a person over 18 years old (or younger, upon a showing of good cause), the court is required to seal all records so long as two years have passed since release from custody/supervision (or entry of judgment), and there have been no subsequent adjudications or convictions for any felony or misdemeanor involving moral turpitude during that time, and no charges are pending.  § 32A-2-26(A).  A sealed record is treated as though proceedings never took place, and a person may deny the existence of any sealed record.  § 32A-2-26(C). See also § 30-31-28, discussed supra, allowing for expungement of drug possession proceedings.

     I. Order of Limited Relief

Section 10 of the Uniform Collateral Consequences of Conviction Act authorizes the court at sentencing to relieve one or more mandatory sanctions “related to employment, education, housing, public benefits or occupational licensing.” N.M. Stat. Ann. § 31-29-10(A). Individuals convicted in other jurisdictions may also petition for an order of limited relief. § 31-29-9(E). This is an important supplemental remedy to the expungement described above, since it is available during the waiting period. A petition may be granted only if the court finds all of the following by a preponderance of the evidence:

“(1) granting the petition will materially assist the individual in obtaining or maintaining employment, education, housing, public benefits or occupational licensing; (2) the individual has substantial need for the relief requested in order to live a law-abiding life; and (3) granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual.”

Prosecutors must be notified of a request for an order of limited relief, while any victims may participate in the proceedings. §§ 31-29-12(A), 31-29-14. Section 11 excepts certain consequences related to sex offenses, driver’s license suspension, firearms dispossession, law enforcement certification, and corrections employment. Section 12 gives effect to an order issued under Section 10 “as evidence of a person’s due care in hiring, retaining, licensing, leasing to, admitting to a school or program or otherwise transacting business or engaging in activity with the individual to whom the order was issued if the person knew of the order at the time of the alleged negligence or other fault.”

IV.  Criminal record in employment & licensing

     A.  Public employment and licensure 

The Criminal Offender Employment Act (1974), N.M. Stat. Ann. §§ 28-2-1 et seq. describes its goal as follows: “The legislature finds that the public is best protected when criminal offenders or ex-convicts are given the opportunity to secure employment or to engage in a lawful trade, occupation or profession and that barriers to such employment should be removed to make rehabilitation feasible.”  § 28-2-2. In determining eligibility for public employment or a license, the  “agency having jurisdiction may take into consideration a conviction, but the conviction shall not operate as an automatic bar to obtaining public employment or license or other authority to practice the trade, business or profession.”  § 28-2-3(A).  The act provides that public employers and licensing boards “shall not make an inquiry regarding a conviction on an initial application for employment and shall only take into consideration a conviction after the applicant has been selected as a finalist for the position.” Id.   Under § 28-2-4(A), a felony conviction may be considered only if it “directly relates” to the occupation in question.  An agency or employer must state the reasons for disqualification in writing if a decision is based on the relationship between crime and employment. § 28-2-4(B).  Notwithstanding these provisions, some agency authorizing statutes specifically provide that conviction of a felony is grounds for denial of a license.  See various provisions in N.M. Stat. Ann. ch. 61 (Uniform Licensing Act, whose procedural provisions are described below.)  

Further limits on consideration of criminal records: As amended in 2021 by SB2, § 28-2-4(A) omitted “misdemeanor convictions involving moral turpitude” as grounds for disqualification even if “directly related” to the occupation; and § 28-2-3(B)(2) through (4) were amended to preclude consideration of non-convictions records, convictions that have been sealed, dismissed, expunged or pardoned; juvenile adjudications; or convictions for a crime that “is not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities. ” In addition, § 28-2-4(C) was amended to delete a provision permitting disqualification from licensure as a teacher or child care provider based on a drug conviction.  Accordingly, it seems fair to conclude that misdemeanors may never be grounds for denial of a license or public employment in New Mexico, whether or not they involve “moral turpitude.” Finally, an alternative basis for disqualification based on insufficient rehabilitation was omitted from the law in the 2021 amendments § 28-2-4(B).

Uniform Licensing Act provides procedures for denial of licensure. See N.M. Stat. Ann. § 61-1-3(a):  “Every licensee or applicant shall be afforded notice and an opportunity to be heard before the board has authority to take any action that would result in: A. denial of permission to take an examination for licensing for which application has been properly made as required by board rule; B. denial of a license after examination for any cause other than failure to pass an examination. . . ..”  Because there is no precise statutory guideline for a proceeding under this section and due process requires adequate notice and a hearing before the state can take action seeking remuneration against a licensee, the sufficiency of the notice and hearing must be determined under a constitutional due process analysis. Rex, Inc. v. Manufactured Hous. Comm., 2003-NMCA-134, 134 N.M. 533, 80 P.3d 470.

When a board contemplates taking an action of a type specified in § 61–1–3 it must provide the applicant with written notice stating why the applicant has failed to satisfy the board of the applicant’s qualifications. § 61–1–4. The applicant is entitled to a hearing. Id.  See also § 61–1–8 spelling out the applicant’s rights. 

     B.  Ban-the-Box for public and private employment

In 2010, a “ban-the-box” provision applicable to public employment was added to the Criminal Offender Employment Act:  “A board, department or agency of the state or any of its political subdivisions shall not make an inquiry regarding a conviction on an initial application for employment and shall only take into consideration a conviction after the applicant has been selected as a finalist for the position.”  N.M. Stat. Ann. § 28-2-3(A).  Records of arrest not resulting in conviction, misdemeanor convictions (including those involving “moral turpitude”), and a range of other relief measures  may not be considered in any application for public employment or licensing.  § 28-2-3(B).  

In 2019, a “ban-the-box” provision applicable to private employment was added to the Act, but it appears substantially less favorable to applicants than the one applicable to public employment: 

If a private employer uses a written or electronic employment application, the employer shall not make an inquiry regarding an applicant’s history of arrest or conviction on the employment application but may take into consideration an applicant’s conviction after review of the applicant’s application and upon discussion of employment with the applicant. Nothing in this section shall prohibit an employer from notifying the public or an applicant that the law or the employer’s policy would disqualify an applicant who has a certain criminal history from employment in particular positions with the employer.

28-2-3.1 (SB 96, § 2 (A)).  If an applicant is aggrieved by a violation of this provision, he or she may “seek relief under the Human Rights Act pursuant to the process set out in Sections 28-1-10 through 28-1-13 NMSA 1978.” Id.

     C.  Caregiver employment

A wide variety of offenses (including violent offenses, drug, and fraud offenses) disqualify from caregiver employment (including hospitals).  N.M. Stat. Ann. § 29-17-5.  A care provider, such as a hospital, may continue to employ a caregiver despite a disqualifying felony conviction, if the Department of Health, upon a request for reconsideration, determines that “the employment presents no risk of harm to a care recipient or that the conviction does not directly bear upon the applicant’s, caregiver’s or hospital caregiver’s fitness for the employment.”  § 29-17-5(F).  But see Spencer v. Health Force, Inc., 107 P.3d 504, 512 (N.M. 2005) (reversing summary judgment for care provider on negligent hiring claim, where care provider failed to conduct a criminal background check on caregiver with extensive criminal record, and caregiver gave patient a fatal injection of heroin).

  1. Under the formulation of this constitutional provision in effect prior to 2014, status as qualified elector ended upon conviction of felony, see State ex rel. King v. Sloan, 253 P.3d 33, 36-37 (N.M. 2011), but that is no longer the case by virtue of the 2014 amendment of art. VII, § 1.
  2. Prior to 2023, the vote was lost upon conviction and restored automatically when a person “(1) has been unconditionally discharged from a correctional facility or detention center; [or] (2) has completed all conditions of parole or supervised probation.” N.M. Stat. Ann § 1-4-27.1; see also id. §§ 31-13-1(A) (vote restored when the person “(1) has completed the terms of a suspended or deferred sentence imposed by a court; [or] (2) was unconditionally discharged from a correctional facility under the jurisdiction of the corrections department or was conditionally discharged from a correctional facility under the jurisdiction of the corrections department and has completed all conditions of probation or parole”), 31-13-1(C) (“A person who has served the entirety of a sentence imposed for a felony conviction, including a term of probation or parole shall be issued a certificate of completion by the corrections department. . . . The certificate of completion shall state that the person’s voting rights are restored.”). A fine is imposed as part of sentence, id. § 31-18-15, and it may also be a condition of supervision along with restitution, fees, and costs. Id. §§ 31-20-6, 13-21-10(E). Early termination of parole or probation is available upon payment of “[a]ll restitution and fines.” N.M. Corr. Depart. Policy 051500.  It was not clear whether failure to pay a fine was required to regain the vote. N.M. Stat. Ann § 1-4-27.1. It was a defense to revocation based on failure to pay court debt  that the person “did not willfully” refuse to pay or “made a good faith effort” to obtain funds. Id. § 31-12-3(C).  See Margaret Love & David Schlussel, Who Must Pay to Regain the Vote: A Fifty-State Survey (July 2020).
  3. Her predecessor, former Governor Susana Martinez did not accept pardon applications for first degree felony convictions, or for misdemeanor domestic violence; similarly, “[s]exual offenders, habitual offenders (including multiple convictions for Driving Under the Influence of Intoxicating Liquors and/or Drugs, Assault or Battery Against a Household Member), multi-felony offenders, or offenders convicted of a crime of violence against a child [were] not eligible for a pardon.”  Martinez Pardon Guidelines §§ III-IV.  Prior to that, as under the 2019 guidelines, the maximum waiting period was ten years.
  4. Under the prior guidelines established by former Governor Martinez after her election in 2010, applicants seeking restoration of civil rights had to remain free from arrest for five to twenty years following discharge from supervision, depending upon the seriousness of the offense.  Martinez Pardon Guidelines § IV.  Prior to these guidelines, people with such offenses were ordinarily not granted pardons.
  5. The previous governor Susana Martinez’ website stated that pardons would be granted only in “extraordinary circumstances.”
  6. The New Mexico Supreme Court has held that while courts have a degree of inherent authority to direct expungement of arrest records, a case must be “egregious” in order to justify this relief. See Stump v. Albuquerque Police Dept., No. S-1-SC- 35912 (March 23, 2017). The Stump court noted in 2017 that “there have been at least eleven attempts since 2005 to pass a statute on expungement that would provide the type of relief Stump requests.” Prior to 2010, the legislature approved bills on the topic, but in at least four cases they were vetoed by the governor.
  7. See N.M. Stat. Ann. § 29-3-8.1(a), repealed by Section 8 of CREA.
  8. A conditional discharge under § 31-20-13 is distinct from deferred sentencing under § 31-20-3.  Though both provisions allow for discharge and dismissal following a period of probation, a deferred sentence results in an adjudication of guilt (and, therefore, a conviction), while a conditional discharge is not accompanied by an adjudication of guilt and does not result in a conviction.  See State v. Herbstman, 974 P.2d 177, 180 (N.M. Ct. App. 1999).
  9. New Mexico courts have held that § 31-20-13 does not provide inherent authority to grant expungement in such cases.  See State v. C.L., 242 P.3d 404, 406-07 (N.M. Ct. App. 2010).