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Supreme Court Law Library

Biblioteca de Derecho del Tribunal Supremo

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The Arrest Record Information Act was passed to ensure accurate, complete, and responsibly disseminated records among law enforcement agencies in New Mexico. See NMSA 1978, § 29-10-2 (1975). This act does not give New Mexico courts the power to expunge a criminal record. State v. C.L., 2010-NMCA-050; see also Toth v. Albuquerque Police Department, 1997-NMCA-079. Courts may be petitioned to expunge criminal records according to other statutes or the common law.

  1. Expunge Criminal Record by Statute
    Outside of two very specific exceptions, criminal records may not be expunged under the Statutes of New Mexico.
    • First Drug Offence for Minors
      It is possible for a minor’s first drug possession offense to be expunged, but only if the minor went through the conditional discharge process. See NMSA 1978, § 30-31-28 (1972). If so, then when the proceedings are discharged, the person may ask the court to expunge all the records (including even the arrest record) relating to this particular offense.
    • Identity Theft
      A person may petition the court to delete the person’s the name and/or expunge the person’s criminal records when the acts committed were done by someone else. See NMSA 1978, § 31-26-16 (2009).
  2. Expunge Criminal Record by Common Law
    New Mexico courts may have an inherent power derived from the New Mexico Constitution to expunge criminal records, but whether the courts have this power is not yet known. State v. C.L., 2010-NMCA-050; see also Toth v. Albuquerque Police Department, 1997-NMCA-079. Even if the courts of New Mexico do have this power, it seems that exercising it would require a showing of “extraordinary circumstances."  Extraordinary circumstances do not seem to include being unable to find a job because of a criminal record. State v. C.L., 2010-NMCA-050, ¶ 19.

    Extraordinary circumstances may, perhaps, be found in situations that involve an arrest that was “illegal, unconstitutional, [or] based on inadequate or flawed procedures.” State v. C.L., 2010-NMCA-050, ¶ 19, citing United States v. Schnitzer, 567 F.2d 536, 539 (2d Cir. 1977).

You may request that a court declare your marriage void (i.e. annul the marriage) if you are a minor, your spouse is not a minor, and you did not have parental consent to marry. You may also request that a court declare your marriage void if you are too closely related to your spouse.

  1. Annulment by Statute
    A New Mexico court can declare a marriage void. Marriages may be voided if at least one spouse is still a minor and parental consent was not given for the marriage (i.e. under the “prohibited ages”), or the spouses are too closely related (i.e. within the “prohibited degrees”). See NMSA 1978, § 40-1-9 (2013).
    1. At Least one Spouse is Still a Minor
      If at least one spouse is a minor (less than 18 years old) and there was no parental consent for the marriage, then the court shall declare the marriage void if asked by the minor, next friend, parent or legal guardian of the minor, or the district attorney. However, the court may not do so if asked by a spouse 18 years old or older if the other spouse is a minor.

      If the spouses live together until each reaches the age that would permit them to marry (each reaches 18 years old or younger if parental consent was granted for some ages less than 18), then the marriage may not be voided.
    2. Spouses are Too Closely Related
      If the spouses are too closely related (within the “prohibited degrees”), then the court may declare the marriage void. Spouses within the “prohibited degrees” are blood-relatives who are too closely related. Since 1880 marriage between cousins of any degree is permitted in New Mexico, however, marriages between certain other relatives are void (e.g. grandparent to grandchild (all degrees), brother to sister (full and half), uncle to niece, and aunt to nephew). See NMSA 1978, § 40-1-7 (2013).
  2. Annulment by Common Law
    Courts have been asked to grant annulments for a long time, so it may be possible that a court would annul a marriage based on older common law grounds (i.e. for reasons that were used by courts to annul marriages even before there were statutes on the subject). Those historical grounds include the following: mental illness, fraud, forced consent, physical incapacity to consummate the marriage, lack of consent to under-age marriage or bigamy. Note that some these reasons may no longer be valid.

You may request a District Court to issue an order legally changing your name. See NMSA 1978, §§ 40-8-1 to -3.

  1. Name Change by Statute

    • Who can file?
      Any resident of New Mexico who is at least 14 years old can file for a Name Change. If you are less than 14 years old, then your parent may file for you. See § 40-8-1.

    • What do you need?
      To file a Name Change you need several documents, but the exact documents used by the district courts vary. Check with your district court to see if they offer forms.?

      • Petition for Change of Name
      • Notice of Filing (You need to publish notice in the newspaper when you change your name.)
      • Request for Hearing (Sometimes this one is included in the Notice of Filing.)
      • Order for Change of Name
    • Is there a forms packet in your district court?
      • First District - Yes. From the Forms page, scroll down to click the appropriate Name Change form under the "Civil Law" heading.
      • Second District - Yes. From the Center for Self Help and Dispute Resolution page, click "Civil Court Forms and Procedures" on the left.
      • Third District - Yes. You can buy a packet from the Court Clerk's Office.
      • Fourth District - Yes. You can buy a packet from the Court Clerk's Office.
      • Fifth District - Yes. You can buy a packet from the Court Clerk's Office.
      • Sixth District - Yes. You can buy a packet from the Court Clerk's Office.
      • Seventh District - No. You could try to adapt another district's forms packet.
      • Eighth District - Yes. You can buy a packet from the Court Clerk's Office.
      • Ninth District - Yes. You can buy a packet from the Court Clerk's Office.
      • Tenth District - Yes. You can buy a packet from the Court Clerk's Office.
      • Eleventh District - Yes. From the Pro Se (Self-Represented) page, click the link to forms for your county at the bottom of the Main Menu to the left.
      • Twelfth District - Yes. From the Forms page, scroll down to the "Civil Forms" heading.
      • Thirteenth District - Yes. From the Forms page, scroll down to "Name Change Packet."
    • Procedure
      Many form packets from district courts explain what you need to do.
      • File - After you complete the forms, you will have to file them with the Court Clerk's office. You will need to take several copies, and the Court Clerk will stamp each one
      • Publish - You will have to publish your plans to change you name in the newspaper for at least 2 weeks before the court can issue the order to change your name. Ask the Court Clerk's Office how you should handle doing that – like which newspaper and what the notice needs to say. Make sure that you get a statement from the newspaper saying that all this is done before going to the hearing. See § 40-8-2.
      • Hearing - After publishing, you will be able to attend the hearing where the court may issue the order to change your name. Make sure that you bring the statement from the newspaper with you to the hearing.?.
    • What do you do with the order?
      Once you have the order changing you name, take a copy stamped by the Court Clerk to the County Clerk's Office to have it recorded. You should also remember to take stamped copies of the order to all the places that have your old name to update it: get a new social security card, driver's license, bank cards, voter registration card, etc.

  2. Name Change by Common Law
    Traditionally you could use any name you liked without a court order. Today this can cause problems with confusion between your driver's license, social security card, and so on. It's best to get a court order.