2023 New Mexico Statutes › Chapter 30 - Criminal Offenses › Article 31 - Controlled Substances › Section 30-31-28 - Conditional discharge for possession as first offense.

A. If any person who has not previously been convicted of violating the laws of any state or any laws of the United States relating to narcotic drugs, marijuana, hallucinogenic or depressant or stimulant substances, is found guilty of a violation of Section 23 [30-31-23 NMSA 1978], after trial or upon a plea of guilty, the court may, without entering a judgment of guilty and with the consent of the person, defer further proceedings and place him on probation upon reasonable conditions and for a period, not to exceed one year, as the court may prescribe.
B. Upon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided. The court may, in its discretion, dismiss the proceedings against the person and discharge him from probation before the expiration of the maximum period prescribed from the person's probation.
C. If during the period of his probation the person does not violate any of the conditions of the probation, then upon expiration of the period the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without court adjudication of guilt, but a nonpublic record shall be retained by the attorney general solely for the purpose of use by the courts in determining whether or not, in subsequent proceedings, the person qualifies under this section. A discharge or dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime including the penalties prescribed under this section for second or subsequent convictions or for any other purpose. Discharge and dismissal under this section may occur only once with respect to any person.
D. Upon the dismissal of a person and discharge of the proceedings against him under this section, a person, if he was not over eighteen years of age at the time of the offense, may apply to the court for an order to expunge from all official records all recordation relating to his arrest, indictment or information, trial, finding or plea of guilty, and dismissal and discharge pursuant to this section except nonpublic records filed with the attorney general. If the court determines, after hearing, that the person was dismissed and the proceedings against him discharged and that he was not over eighteen years of age at the time of the offense, it shall enter the order. The effect of the order shall be to restore the person, in the contemplation of the law, to the status he occupied before the arrest or indictment or information. No person in whose behalf an order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest, or indictment or information, or trial in response to any inquiry made of him for any purpose.
History:
1953 Comp., § 54-11-28, enacted by Laws 1972, ch. 84, § 28.
ANNOTATIONS
Conditional discharge dismissal not "conviction".
— A dismissal under the conditional discharge statute, Section 30-31-28 NMSA 1978, is not a "conviction" as contemplated by this section, or for any other purpose.
State v. Fairbanks
, 2004-NMCA-005, 134 N.M. 783, 82 P.3d 954.
Habitual offender statute.
— Although the habitual offender statute applies to a prior felony conviction under the Controlled Substances Act, Sections 30-31-1 to 30-31-41 NMSA 1978, it does not apply if there is a conditional discharge under Section 30-31-28 NMSA 1978.
State v. Fairres
, 2003-NMCA-152, 134 N.M. 668, 81 P.3d 611, cert. denied, 2003-NMCERT-003, 135 N.M. 51, 84 P.3d 668.
Prior conviction, not prior sentence, is dispositive for repeat offender status.
— Where defendant was convicted of drug charges in New Mexico; the New Mexico court deferred defendant's sentence for a two-year probationary period; the deferred sentence was a final judgment subject to appeal; and after defendant successfully completed the probation, defendant was entitled to have the New Mexico charges dismissed, the deferred sentence was a prior conviction for purposes of sentence enhancement.
United States v. Meraz
, 998 F.2d 182 (10th Cir. 1993).