Can A Felon Get Gun Rights Back In New Mexico?

Can A Felon Get Gun Rights Back In New Mexico? Absolutely, understanding the restoration of firearms rights for felons in New Mexico is crucial, and at gaymexico.net, we’re here to guide you through the legal landscape with clarity and compassion, ensuring everyone has access to the information they need, including LGBTQ+ individuals. New Mexico law allows for the restoration of gun rights, offering a path toward reclaiming these rights after a felony conviction. This guide will provide a comprehensive overview of the process, eligibility, and related considerations.

1. Understanding Firearm Restrictions for Felons in New Mexico

What are the firearm restrictions for felons in New Mexico? New Mexico law places specific restrictions on firearm possession for individuals convicted of felonies. According to N.M. Stat. Ann. § 30-7-16, it is unlawful for a person convicted of a felony to receive, transport, or possess any firearm or destructive device for 10 years after completing their sentence. This restriction also applies to those convicted of certain misdemeanor crimes, such as battery against a household member, criminal damage to property of a household member, stalking, or any misdemeanor crime of domestic violence that is considered firearm-prohibiting under federal law. This includes LGBTQ+ individuals who may have faced unique challenges within the legal system.

2. Pathways to Restoring Firearm Rights

What are the pathways to restoring firearm rights for felons? While the 10-year restriction is in place, there are ways to regain firearm rights sooner. These include:

• Governor’s Pardon: A governor’s pardon can restore firearm rights before the 10-year period elapses. However, it’s important to note that the governor can choose not to restore firearm rights even in an unconditional pardon, as per N.M. A.G. Op. No. 92-09 (1992).

• Deferred Sentence: If a person received a deferred sentence, their rights are restored upon successfully completing the total term of deferment, as outlined in Section 31-20-9.

• Completion of Sentence: After completing their sentence, including any parole or probation, felons in New Mexico can regain their right to vote and hold public office.

These pathways offer hope for individuals looking to reclaim their rights and reintegrate into society, including members of the LGBTQ+ community.

3. The Governor’s Pardon: A Closer Look

How does the governor’s pardon work in restoring gun rights? The pardon power rests exclusively with the governor, as stated in N.M. Const. art. V, § 6. This power extends to all state offenses but does not include convictions for violations of municipal ordinances. The governor’s pardon can relieve individuals with New Mexico convictions from both state and federal firearms disabilities.

However, it’s crucial to understand that the governor has the discretion to grant or deny a pardon, and even an unconditional pardon does not automatically restore firearm rights. Applicants seeking to restore their right to bear arms must specifically request this when applying for a pardon and wait an additional year to apply for the right to bear arms.

4. Eligibility for a Pardon

Who is eligible to apply for a pardon in New Mexico? Those who have completed their sentences and have been discharged from supervision may apply for a pardon to restore their civil rights after an additional waiting period. According to the Executive Clemency Guidelines established by Governor Lujan Grisham in 2019, applications may be submitted for any offense. However, pardon requests for applicants convicted of misdemeanors, DWI offenses, multiple felony convictions, sexual offenses, and violent offenses or physical abuse involving minor children will ordinarily not be granted.

Applicants with a felony conviction must remain free from arrest for five to ten years following discharge from supervision, depending on the seriousness of the offense. 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.

5. The Pardon Application Process

What is the process for applying for a pardon? The Executive Clemency Application Form is available on the governor’s website. The process is detailed in the Executive Clemency Guidelines.

Here’s a breakdown of the process:

1. Application Submission: Completed application forms must be submitted to the governor’s office by mail (not electronically).

2. Parole Board Review: The governor may forward the application to the Parole Board for investigation and recommendation.

3. Investigation: The Parole Board examines 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.

4. Field Investigation: If the application meets the criteria, the Parole Board will call for a field investigation by the Corrections Department.

5. Input from Officials: The Parole Board or the governor may also request input from the sentencing judge and/or prosecuting attorney.

6. Governor’s Decision: 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 a pardon, arrest records, and certified court documentation. If an applicant is denied a pardon, they are not eligible to reapply until two years following the date of the previous application.

6. Criteria and Standards for Granting a Pardon

What criteria are considered when granting a pardon? The 2019 guidelines call for a “holistic review” of each applicant’s case for pardon. The 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.

• Any other factors weighing on the fundamental fairness of granting a pardon to the applicant.

Applicants should include any significant achievements and evidence of good citizenship, such as charitable and civic contributions, voluntary community service activities, military service, and educational degrees or professional certificates. The governor will view favorably any civic contributions and educational accomplishments of applicants both prior to and after conviction.

Additionally, the governor will consider whether the applicant has been a law-abiding citizen and a productive member of society after their conviction. Consideration will be given to consistent employment and the lack of a criminal record after discharge, and the governor will weigh whether the applicant has demonstrated personal growth.

7. Frequency of Pardons in New Mexico

How often are pardons granted in New Mexico? 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, she issued her first 19 pardons, to individuals convicted of less serious offenses more than a decade before. By August 2021, her total reached 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.

In contrast, former Governor Susana Martinez issued just 3 pardons out of 255 requests in her eight years in office (2011-2019), while former Governor Bill Richardson issued 74 pardons out of 1,051 requests in his eight years in office (2003-2011).

8. Expungement and Record Relief: An Alternative Pathway

What is expungement, and how does it offer record relief? In addition to pardons, New Mexico offers expungement (sealing) of criminal records, providing another pathway for individuals to move forward. In 2019, New Mexico enacted a comprehensive law authorizing the expungement of most non-conviction records and 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.

9. Expungement of Conviction Records: Eligibility and Process

How can a person expunge their conviction record? 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.”

Here are the key points:

• 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.

• 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.

Expungement forms are available on the New Mexico Courts website. 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.

10. Understanding the Uniform Collateral Consequences of Conviction Act

What is the 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. This act requires the collection of all mandatory collateral sanctions, provides judicial relief from such collateral consequences as early as sentencing, establishes standards for discretionary disqualification, and gives effect to relief from other states.

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.

11. Automatic Expungement of Marijuana Offenses

How does automatic expungement of marijuana offenses work? 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.

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.

12. Sealing Records for Victims of Human Trafficking

How are records sealed 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.”

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.

13. Diversionary Dispositions: Deferred Imposition of Sentence

What is a 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.

Effective January 1, 2020, courts have the 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. 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.

14. Conditional Discharge Without Judgment

What is a 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.

Conditional discharge is also available for first-time drug offenders and eligible for expungement if under 18 at the time of the offense. 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.

15. Expungement of Non-Conviction Records

How can non-conviction records be expunged? 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, or any other discharge, including the conditional discharge without judgment described above.

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.

16. Sealing of Juvenile Records

How are juvenile records sealed? Juvenile records are generally unavailable to the public. 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.

A sealed record is treated as though proceedings never took place, and a person may deny the existence of any sealed record.

17. Order of Limited Relief: A Tool for Reintegration

What is an 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.” Individuals convicted in other jurisdictions may also petition for an order of limited relief.

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:

• Granting the petition will materially assist the individual in obtaining or maintaining employment, education, housing, public benefits, or occupational licensing.

• The individual has a substantial need for the relief requested in order to live a law-abiding life.

• Granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual.

18. Criminal Record in Employment and Licensing

How does a criminal record affect employment and licensing? The Criminal Offender Employment Act (1974) aims to provide criminal offenders or ex-convicts with 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.

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 a license or other authority to practice the trade, business, or profession.

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.

19. Ban-the-Box: Removing Barriers to Employment

What is Ban-the-Box, and how does it help? In 2010, a “ban-the-box” provision applicable to public employment was added to the Criminal Offender Employment Act. This provision states that 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.

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.

20. Caregiver Employment: Specific Restrictions

What are the restrictions for caregiver employment? A wide variety of offenses (including violent offenses, drug, and fraud offenses) disqualify from caregiver employment (including hospitals). 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.”

Navigating the legal landscape surrounding firearm rights for felons can be complex, but understanding the laws and available pathways is the first step toward reclaiming your rights and rebuilding your life. At gaymexico.net, we are committed to providing accurate and compassionate information to help you on this journey.

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FAQ: Firearm Rights for Felons in New Mexico

1. Can a felon ever own a gun again in New Mexico?

Yes, a felon can own a gun again in New Mexico, typically after 10 years following the completion of their sentence, or sooner if they receive a governor’s pardon.

2. What is the waiting period for a felon to possess a firearm in New Mexico?

The waiting period is generally 10 years after the completion of the felon’s sentence, including any parole or probation.

3. How does a governor’s pardon restore gun rights?

A governor’s pardon can restore firearm rights before the 10-year period, but the governor may choose not to restore these rights even with an unconditional pardon.

4. Are there any crimes that make a person permanently ineligible to own a gun?

While certain serious offenses may make it more difficult to obtain a pardon, New Mexico law does not explicitly list crimes that permanently bar firearm ownership.

5. Can a federal conviction affect gun ownership rights in New Mexico?

Yes, but a New Mexico governor’s pardon can restore full citizenship rights under New Mexico law, which may help in regaining some rights, though federal law still applies.

6. What is expungement, and how does it relate to gun rights?

Expungement is the removal of a conviction from public record, but in New Mexico, it doesn’t directly restore gun rights; a pardon is generally required for that purpose.

7. What is the role of the New Mexico Parole Board in restoring gun rights?

The Parole Board investigates requests for pardon at the governor’s request and makes recommendations, but the final decision rests with the governor.

8. Does completing a deferred sentence restore gun rights?

Yes, if a person received a deferred sentence, rights are restored upon successful completion of the total term of deferment.

9. Are there any restrictions on gun ownership related to misdemeanor convictions?

Yes, those convicted of certain misdemeanor crimes, such as domestic violence, are prohibited from possessing firearms for a specific period.

10. Where can I find the application for executive clemency in New Mexico?

The Executive Clemency Application Form is available on the governor’s website.