Denver DUI Attorney Blog

The Colorado Court of Appeals recently announced that you can't seal a successfully completed deferred judgment and sentence for a DUI offense. In the Matter of the Petition of Paige Harte, the Court found that Ms. Harte successfully completed a deferred judgment for her alcohol-related driving offense, but was not eligible to seal her record. The record sealing statute excludes convictions for alcohol-related driving offenses from eligibility. Therefore, the Court reasoned that the term "conviction" in the record sealing statute also applied to a successfully completed deferred sentence, even though Ms. Harte's case was dismissed and she ultimately was not convicted. If you're confused about this reasoning, you're not alone.

Due to this recent ruling, the benefits of a deferred judgment in the DUI context are minimal.

One of the "selling points" of a deferred judgment and sentence in any criminal case is the ability of a defendant to get the case off their record at the end of the deferred period by sealing all the records. It's another chance at a "clean slate".

The way a deferred works is that a defendant pleads guilty to a criminal charge, but the judgment of conviction is deferred for a set time period. During the set time period, the defendant complies with probation and stays out of trouble. If the defendant completes all the terms and conditions of the deferred judgment, his case will be dismissed with prejudice at the end of the deferred period. A defendant will typically want to seal all of the records associated with his case at the end of the deferred period. It essentially gives a defendant a "fresh start" or a second chance at life with a clean and clear criminal history. Once the records are sealed, Colorado law provides that a defendant can also deny the record and indicate that no such record exists.

A dismissal is a great result in any criminal case because the percentage of cases that result in a dismissal are low. However, a dismissal should also come with the benefit of a defendant being able to seal his or her record.

In today's competitive job market, the majority of companies run some sort of a criminal background check on prospective applicants. According to the National Consumer Law Center, 93% of employers run criminal background checks on some applicants and 73% of employers run criminal background checks on all applicants.If an applicant has a record that has been properly sealed, the company should not be able to find the record and the applicant can lawfully state, under Colorado law, that he/she has not been arrested and no such record exists. Essentially, the applicant can answer "no" to a criminal background question (assuming that he/she has no other criminal history records).

On the other hand, if an applicant has a record that has been dismissed, all of the records will likely still appear in a person's background. And often times, even though no conviction enters on a dismissed case, many potential employers are reluctant to hire an applicant with a "criminal history". It seems that often times employers do not distinguish between an arrest, charge, and a conviction. Thus any record of criminal activity, regardless of the actual outcome, may negatively impact a job applicant. Thus it is unfortunate to see that the Colorado Court of Appeals has determined that the benefits of a record seal do not apply to those who have successfully completed a deferred sentence in a DUI case.

Continue reading "What is the benefit of a deferred sentence in a DUI case if you can't seal it?" »

As more and more people are heading back to work in the recovering economy, I find my office inundated with calls for help in sealing criminal records. Open records of an arrest, criminal court proceeding, police records, sheriff's department records, and probation records can be devastating to an applicant seeking employment in a competitive marketplace. Many applicants with criminal records report passing through the interview and hiring process, but subsequently being rejected as a result of a "final step" background check. Some employers are now running background checks before an applicant will even be considered for a position.

Over 90 percent of employers now run background checks on applicants. In Colorado, one of the quickest ways to access anyone's up-to-the-minute court information can be obtained for the small price of six dollars ($6.00) and an internet connection at the Colorado court database. A Colorado Bureau of Investigation (CBI) official arrest record will cost you six dollars and eight-five cents ($6.85). Criminal background information may also be obtained at any of the plethora of third-party background check companies found on the internet. Just Google "criminal background check".

In Colorado, the record sealing statute applies to adult records, whereas the expungement statute applies to juvenile records. Thus, in determining what can or cannot be sealed or expunged, the inquiry starts here: is it a juvenile or adult record that we're trying to clean-up. Adult records can be sealed if the case was dismissed or the Defendant was acquitted at trial. Convictions cannot be sealed. However, there is a recent exception to this bright-line test. Certain drug (controlled substance) convictions may now be sealed including petty offenses, misdemeanors, and certain Class 5 and Class 6 felony offenses. Different provisions of this statute apply, depending upon whether or not the conviction was entered on or after July 1, 2008. At a hearing on the petition to seal records, the Court makes a determination as to whether or not the petitioner has essentially shown that her interest in sealing the records outweighs the public's interest in retaining the records.

Thus, the answer as to whether or not you can seal criminal conviction records in Colorado is both "yes" and "no". You can now seal criminal conviction records, but only if the records pertain to certain controlled substance offenses. Otherwise, other adult criminal records may be sealed only if the case was dismissed (all charges) or the Defendant was acquitted (all charges) at trial. There are many avenues that may lead to a dismissal. A dismissal sometimes occurs by the Court dismissing a case outright. Other avenues include a dismissal through a successfully completed deferred judgment and sentence, a successfully completed diversion program, or deferred prosecution.

Without a doubt, the record sealing statutes are complex, and many times the issues that arise in sealing the records become extremely complex. Unfortunately, even though a record may be eligible to be sealed, the District Attorney's Office (or any other entity listed on the petition) may object to a petitioner's sealing on various grounds. If a petitioner is not properly prepared, she may be denied the benefit of sealing her records.

Continue reading "You can't seal criminal conviction records in Colorado. Or can you?" »