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automobile-automotive-autumn-228094-1024x683Driving after revocation prohibited in Colorado is a Class 1 Misdemeanor punishable by a minimum of 6 months in jail up to 18 months jail and a fine of $500 up to $5000.  Clearly, driving after revocation prohibited in Colorado is a serious offense.

A driving after revocation prohibited charge occurs when a person who has been found to be a habitual traffic offender at DMV drives a motor vehicle in Colorado.  A separate provision of the statue provides that there is a mandatory minimum 30 days jail to be imposed for a conviction for driving after revocation prohibited (DARP), however the court may suspend the mandatory 30 days jail (or a portion of it) if the person completes at least 40 hours of community service up to a maximum of 300 hours of community service.  A lot of courts and district attorneys seem to not like this provision of the statute.  Many courts and district attorneys believe that jail should be served in all DARP cases and won’t consider community service as a substitute.

A mandatory minimum fine of $3000 shall be imposed in lieu of jail or in addition to jail.   The mandatory minimum fine may be suspended entirely or partially if the person completes 40 to 300 hours of community service.  The court does not have the discretion to place someone on probation for a DARP offense.  If the court agrees to community service instead of jail, the court may vacate a suspended jail sentence upon the person’s successful completion of the community service hours.  If the person does not complete the community service hours (if ordered) the court has to impose the mandatory jail and/or mandatory fine.

In prosecuting the charge, the district attorney’s office has to prove that the driver had “knowledge” of the revocation.  Knowledge it is an essential element of the charge.  The mailing of the notice of the order of revocation from DMV is only prima facie proof of receipt, and it is not conclusive proof.  The district attorney’s office also has to show that the person operated a motor vehicle in Colorado while the order of revocation of the person’s driver’s license as a habitual traffic offender (HTO) was in effect.

Aggravated driving with a revoked license occurs when an HTO driver commits any of the following offenses while driving a motor vehicle: reckless driving, vehicular eluding, hit-and-run/failure to report an accident, and eluding or attempted eluding of a police officer.  Aggravated driving with a revoked license is punishable as a Class 1 Misdemeanor with a minimum sentence of 60 days jail.  It’s important to note that there is no provision in the statute for a person to complete community service in lieu of jail under an aggravated driving with a revoked license charge.  Probation may also be imposed for aggravated driving with a revoked license.

If a person is found to be driving under the influence (DUI), driving under the influence per se (DUI per se), or driving while ability impaired (DWAI) and at the same time driving after revocation prohibited, she will be subject to a separate sentence for each offense.  Probation for the aggravated DARP charge may run concurrent with the DUI/DWAI charge.  Both convictions, if applicable, will be reported on the person’s driving history.

By statute, district attorneys are required to screen all cases where a person is charged with driving under revocation or driving without a driver’s license to determine if the person should actually be charged with the greater offense of driving after revocation prohibited (DARP).  Essentially, the district attorney is required to screen all cases to determine if the person charged has been found to be a habitual traffic offender (HTO) at DMV.  If so, the district attorney’s office is required by law to charge the person under the DARP law.

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adventure-automobile-automotive-787476-1024x683Three (3) or more major offenses in a seven (7) year period will cause the Colorado Department of Revenue, Division of Motor Vehicles (DMV), to impose severe driver’s license sanctions against a driver.  These major offenses include: driving under the influence (DUI), driving while ability impaired (DWAI), driving under the influence per se (DUI per se), reckless driving, driving under revocation, false affidavit or false swearing to DMV, vehicular homicide, vehicular assault, manslaughter-motor vehicle related, criminally negligent homicide-motor vehicle related, aggravated motor vehicle theft, and hit-and-run/leaving the scene of an accident involving injuries or death.

Some out-of-state convictions also qualify.  This is an enhanced provision of the statute.  If Colorado DMV is aware of a conviction for any of the following offenses out-of-state, charged federally, or charged in a municipal court it may factor in the non-Colorado conviction in reaching a determination that a driver is a Habitual Traffic Offender (HTO).  Out-of-state (or charged federally) convictions for DUI, DUI per se, DWAI, reckless driving, driving under restraint, vehicular assault, vehicular homicide, manslaughter-motor vehicle related, and criminally negligent homicide-motor vehicle related may trigger an HTO sanction/determination at Colorado DMV.  According to the law, it does not matter if the driver is a Colorado resident or out-of-state resident for determination of status as HTO.

If more than one HTO offense is committed on the same day, the law reads that the multiple offenses shall be treated as one offense for purposes of determining HTO status.  Thus, if a driver is convicted of both DUI and driving under restraint on the same day, only one HTO strike shall be imposed upon the driver at DMV.

When Colorado DMV has made a determination that a driver is HTO, it will immediately revoke the driver’s license pursuant to CRS 42-2-203.  A habitual traffic offender (HTO) will be revoked for a period of 5 years from the HTO determination.  However, sometimes HTO drivers may be reinstated early with ignition interlock.

A driver will also be designated as a Habitual Traffic Offender if she accumulates 10 or more traffic convictions of 4 or more points within a 5 year period, based upon date of violation (not date of conviction).  Or, she will also be designated as a Habitual Traffic Offender (HTO) is she accumulates 18 or more convictions having a point assessment of 3 or fewer points within a 5 year period (based upon date of violation, note date of conviction).

In light of the Hedstrom case, 662 P.2d 173 (Colo. 1983), the DMV does not have any discretion when making an HTO determination.  In other words, if the driver has the reached the threshold qualifying conviction, DMV cannot make an exception to the rule of revoking a driver’s license for 5 years.  Further, in light of the Fuhrer case, 592 P.2d 402 (1979), a DMV hearing officer does not have discretion to issue a probationary driver’s license to a Habitual Traffic Offender.

It is also important to note that Habitual Traffic Offenders remain designated as such, even after the 5 year period has passed, until the driver actually goes therough the reinstatement process at DMV.  In other words, the HTO status is not automatically lifted at DMV after the 5 year sanction has been completed.

The Habitual Traffic Offender laws in Colorado have developed significantly within the past few years.  The HTO designation has become easier for DMV to prove by the use of out-of-state major convictions.  Thus it is imperative for a driver to not “achieve” HTO status at DMV to avoid the severe sanction of a 5-year loss of license.  HTO status can be avoided if the driver is aware of his prior convictions and successfully navigates the court system, when charged, to resolve his matter to a non-HTO strike.

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code-coding-computer-34676-1024x683In Colorado, it may be possible to be removed from the Colorado sex offender registry even if the out-of-state case resulted in a “lifetime” registration requirement.  Colorado laws regarding registration may be less stringent than some other states.  Sometimes Colorado residents who are required to register (in Colorado) for an out-of-state case simply continue to register even if they are eligible for removal because the are unaware of the laws in Colorado and/or are unsure about the often times intimidating process of petitioning the court for removal.

The Colorado Bureau of Investigation (CBI) maintains a public open access database to search for persons that are required to register as sex offenders in Colorado.  The CBI database provides photographs of the person, information about the offense, the person’s address (including a map), and date of conviction.  Not all persons who are required to register are included in the CBI database.  Specifically, the CBI open access database excludes information regarding persons who are required to register for misdemeanor cases and juvenile cases.

Many local police departments and sheriff’s departments also maintain their own public open access databases regarding persons required to register in their jurisdiction.  Some examples of these online databases include the Denver Police Department, the Larimer County Sheriff’s Office, the Boulder County Sheriff’s Office, and the El Paso County Sheriff’s Office– just to name a few.

The first step in commencing the removal process is to determine if the person qualifies under Colorado law for relief from the registration requirement.  The person must simply qualify under one of the following five eligibility criteria.  1) If the person successfully completed a deferred sentence or deferred adjudication for a case involving unlawful sexual behavior, or the case was dismissed, he/she may qualify if he/she has not been subsequently convicted or adjudicated for another case involving unlawful sexual behavior.

2) If the person required to register was younger than 18 at the time of the offense related to unlawful sexual behavior and has successfully completed a juvenile sentence from the court, he/she may be eligible for removal/discontinuation from the sex offender registration requirement.  Further, he/she must not have been convicted of (or currently have pending) a subsequent case involving unlawful sexual behavior.

3) Misdemeanor unlawful sexual behavior offenses qualify for registration removal after a period of 5 years from the person’s release from the court’s jurisdiction.  He/she must not have any subsequent cases involving unlawful sexual behavior since the termination of the court’s jurisdiction in the case which triggered the registration requirement.  Third degree sexual assault and unlawful sexual contact are excluded from the 5 year waiting period and are subject to the 10 year waiting period indicated below.

4) Class 4, 5, and 6 Felony offenses as well as Misdemeanor third degree sexual assault and unlawful sexual contact offenses are subject to a 10 year waiting period.  In other words, 10 years from the termination of the court’s jurisdiction over the person, or release from the D.O.C. (Department of Corrections) , or release from the Department of Human Services.  Further, the person must not have any subsequent convictions or adjudications for unlawful sexual behavior offenses.

5) Class 1, 2, and 3 Felony offenses are eligible after a 20 year waiting period.  In other words, 20 years from the termination of the court’s jurisdiction over the person, or release from the Department of Corrections or the Department of Human Services.  Further, the person must not have any subsequent convictions or adjudications for unlawful sexual behavior offenses.

Cases which are not currently eligible for sex offender registration removal/discontinuation in Colorado include the following: a) adults with more than 1 conviction or adjudication for unlawful sexual behavior offenses in Colorado or another state; b) sexually violent predators; c) adult convictions for sexual assault, 1st degree sexual assault, 2nd degree sexual assault; d) sexual assault on a child; e) sexual assault on a child by a person in a position of trust; f) aggravated incest; g) incest; h) sexual assault by a psychotherapist against a client victim.

Petitions to be removed from the sex offender registration requirement for an out-of-state case shall be filed in the district court for the county where the person required to register resides.

Notice of the petition to discontinue sex offender registration must be served upon all police agencies with whom the person is required to register (including the out-of-state police agency/agencies, the prosecuting attorney’s office in all jurisdictions where the police agency/agencies is/are located, and the prosecuting attorney’s office who obtained the conviction or adjudication which initiated the registration requirement (i.e. the out-of-state prosecutor’s office that prosecuted the case).

Once all of the procedural requirement have been met, a hearing will be held by the district court to determine whether the person should be permitted to discontinue sex offender registration in Colorado.  Proper preparation for that hearing is critical.

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IMG_0499-1024x768The Aurora Municipal Court located at 14999 East Alameda Parkway, Aurora, Colorado 80012 presides over violations of the Aurora Municipal Code.  These matters include traffic tickets (both traffic criminal offenses and traffic infractions), parks and open space charges, certain criminal matters, neighborhood services charges, overweight commercial truck charges, animal services violations, and fire department related charges.   Other summonses issued by the Aurora Police Department for alleged violations of state statues are heard by either Douglas County Court in Castle Rock, Arapahoe County Court in Centennial, or Adams County Court in Brighton.

The Aurora Police Department has 696 sworn officers, making it the 2nd largest police department in Colorado.  The city of Aurora covers a sprawling 163 square miles.  In light of Aurora’s population (3rd largest city in Colorado) and the number of sworn officers, the Municipal Court sees an abundance of drivers charged with all kinds of traffic offenses and infractions.

Aurora Municipal Court has adopted the Colorado Model Traffic Code.

Traffic infractions in Aurora Municipal Code are punishable by a fine of not more than $2650.00 and points assessed against the person’s driver’s license.  Traffic infractions are not criminal offenses.  People who are charged with a traffic infraction do not have a right to a trial by jury, they only have a right to a bench trial (trial by judge- also known as a final hearing).

Certain traffic offenses in Aurora Municipal Court are categorized as criminal and therefore the possible penalty is up to 1 year in jail and up to a $2650.00 fine.  People who are charged with criminal traffic offenses have the right to a trial by jury but they must pay the jury trial fee and submit a written jury trial demand to the court within the required time period.  Criminal traffic offenses under the Aurora Municipal Code include, but are not limited to: careless driving, reckless Driving, speeding 25mph or more over the limit, no insurance, speed contest/drag racing, use of a radar jamming device, eluding a police officer, failure to yield to an emergency vehicle, and not stopping for a school bus.

If the traffic charge relates to a non-criminal traffic infraction and the person fails to appear in court as directed by the summons, then a “default judgment” will enter including a fine and costs as well as the full points charged in the summons.  An arrest warrant will not issue for a failure to appear on a traffic infraction.  However, a warrant will issue if the person was charged with any criminal traffic offense(s) in the summons.  Sometimes a default judgment that enters for failure to appear on a non-criminal traffic infraction may be set aside for “good cause” or “excusable neglect”.  A motion to Aurora Municipal Court to set aside a default judgment on a traffic infraction must be made not more than 10 days after entry of the default judgment.  The Court may rule on the motion after the 10 day period, however the motion must be submitted within the 10 day period.

Discovery (police report, officer’s notes, etc.) requests for traffic cases must be made to the Aurora City Attorney’s Office – Criminal Justice Division.  Thereafter the person must appear at a scheduled appointment with the City Attorney’s Office to pick up the discovery and review any criminal and/or driving history.

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IMG_0476-1024x768In 2017, there were 108 DUI cases filed in Morgan County Court in Fort Morgan, Colorado.  These cases had an average BAC of approximately two times the per se legal limit for DUI.  The average BAC being 0.155.  The number of DUI cases filed in Morgan County Court in 2012 was 137.  The average BAC of these 137 cases was 0.147.  Thus the sheer number of cases has dropped from the year 2012 to the year 2017 by approximately 27%, however the average BAC has gone up slightly.

Enforcement for Morgan County DUI and DWAI cases comes from several different law enforcement agencies.  The Colorado State Patrol frequently patrols the I-76 area and other county wide roads looking for traffic infractions and possible DUI drivers.  District 3 of the Colorado State Patrol handles patrol for Morgan County (and the entire Northeast Colorado area) with their local post located at 13360 W I-76 Frontage Road, Fort Morgan, CO 80701.

The Morgan County Sheriff’s Department is also active in the county.  Their office is located at 801 East Beaver Avenue, Fort Morgan, Colorado.  The Fort Morgan Police Department regularly patrols the City of Fort Morgan and initiates stops for DUI and other traffic matters.  Their office is located at 901 East Beaver Avenue, Fort Morgan, Colorado 80701.  The Fort Morgan Police Department maintains 28 sworn officers and 5 civilians to serve the residents of Fort Morgan, Colorado.

The Brush Police Department is active in the City of Brush in Morgan County and conducts traffic enforcement activities including DUI enforcement throughout the city of approximately 5000 persons.  The Brush Police Department is located at 118 Carson Street, Brush, Colorado 80723.

The Log Lane Village Police Department, with 4 deputy marshals, located at 109 Maine Street, Log Lane Village, Colorado 80705 and the Wiggins Police Department located at 304 Central Avenue, Wiggins, Colorado 80654 also conduct traffic enforcement in their towns within Morgan County.  Their traffic enforcement activities also include DUI enforcement.

DUI cases in Morgan County Colorado start out the same way that many of the cases do statewide.  There is typically an alleged traffic infraction which initiates the police contact.  This initial police contact must be supported by reasonable suspicion and may be challenged at a motions hearing.  Traffic infractions varying from speeding, weaving, driving the wrong way on a one way street, REDDI reports (report every drunk driver immediately), no turn signal, headlight/taillight/license plate bulb out are all common infractions the police utilize as grounds for stopping a vehicle.  Once the stop is initiated, the police are typically looking for any possible indicia of impairment to include bloodshot watery eyes, slurred speech, odor of alcohol, admission to drinking, etc. to then order the driver out of the vehicle where roadside tests are “requested”.  Thereafter, often times the driver is arrested even if no roadside tests are performed and asked to submit to a chemical test.  Audio and Video is sometimes available for certain DUI stops in Morgan County.  Although it is not available for all DUI stops, it can often be a critical piece of evidence to obtain for a defense attorney when investigating a police officer’s allegations in a report. Continue reading

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pexels-photo-236452In Colorado it’s illegal for a driver to drive a motor vehicle when the person knows that their license is “under restraint”.  “Knowledge” of the restraint is an element that the district attorney’s office would have to prove in order to obtain a conviction if the matter were to proceed to trial.  Sometimes the “knowledge” element may be difficult for a district attorney to prove due to various factors such as a driver not receiving a notice of suspension letter in the mail from DMV.  “Knowledge” under this law pertains to actual knowledge of any restraint from whatever source.  “Knowledge” does not mean that the person had to have knowledge of a specific restraint or the length of the restraint.

Colorado’s driving under restraint law applies to persons who are driving under suspension, restraint, denial, and revocation.  Further, this law applies to both residents and non-residents of Colorado.  The violation of this law is a misdemeanor with a maximum possible jail sentence of 6 months and a maximum possible fine of $500 for offenses committed when the person’s license is under restraint, suspension, or revocation for reasons not related to alcohol traffic violations such as driving while ability impaired, driving under the influence, driving under the influence per se, or underage drinking and driving.  This statute specifically notes that this penalty applies to offenses that occurred on or after July 1, 1974.

Under Colorado law, if there is a second or subsequent conviction for driving under restraint whereby the restraint is not due to an alcohol traffic violation and the conviction occurs within 5 years of the previous conviction, the division of motor vehicles (DMV) will not issue a driver’s license to an adult or minor for 3 years after the second or subsequent conviction.  This DMV penalty is in addition to any penalty imposed by the court for the driving under restraint charge.

The penalty is enhanced for those drivers who are convicted of driving under restraint when their license is suspended, revoke, or under restraint for alcohol-related traffic violations.  Colorado considers a restraint due to an alcohol-related traffic offense to be more serious or more aggravated than driving under suspension due to accumulating too many points or not having having insurance, for instance.  The restraint in these types of cases can be entirely or partially due to an alcohol-related traffic offense.  This statute applies to both residents and nonresidents of Colorado and to restraints due to convictions in Colorado for DUI, DUI per se, underage drinking and driving (UDD), and DWAI as well as restraints due to Express Consent Revocations pursuant to CRS 42-2-126, as well as out-of-state alcohol-related traffic offenses.  The mandatory penalty is a minimum 30 days jail up to a maximum of 1 year and a fine of $500 dollars up to $1000 dollars.

A second or subsequent conviction carries an even more enhanced penalty of a minimum of 90 days in jail up to a maximum of 2 years and a fine of $500 dollars up to $3000 dollars.  The minimum 90 day jail sentence is mandatory and the Court does not have discretion to grant probation or a suspended sentence.  In cases where a driver is convicted of driving a motor vehicle under restraint (and the restraint due to an alcohol offense) a driver may avoid the mandatory jail provision if she can show that she had to drive due to an emergency.  This, however does not mean that the driver will absolutely avoid any jail, but rather it simply means that the driver is not subject to mandatory jail.  The possible maximum penalty under this factual situation for a first offense is 1 year with a maximum fine of $1000.  For a second or subsequent offense where it is shown that an emergency necessitated the driving under restraint, there is no mandatory jail, however the court may impose in its discretion jail of up to 2 years and a fine not to exceed $3000.  If the second or subsequent driving under restraint due to an alcohol offense occurs within 5 years after the first conviction, then DMV will further sanction the driver in that she will not be eligible for a driver’s license for 4 years after the second or subsequent conviction.

When there is a verdict or judgement of guilt for an alcohol or non-alcohol related driving under restraint, the Court shall require the driver to immediately surrender his driver’s license issued by Colorado or another state.  Thereafter, the Court shall complete a special form notifying the DMV of the notice of verdict or judgment of guilt and send the driver’s license with this form to DMV.  The law further reads that a person who does not surrender her license to the court commits a separate misdemeanor traffic offense.  Thus it is important for drivers (and the courts) to be aware of this additional surrender requirement.

If a person drives a motor vehicle in Colorado and the restraint is due to an outstanding judgment warrant (OJW), then the penalty is reduced to a non-criminal traffic infraction.

If a person is convicted of driving under restraint whereby the restraint was not initiated by an OJW, the person’s eligibility for a driver’s license at DMV will be extended by one (1) year.  In other words, in addition to the criminal penalties provided by the Court, DMV will also impose a sanction whereby a person will not be eligible to reinstate their driver’s license for a period of 1 year on top of their current eligibility date.  This is a very common issue that surfaces when drivers elect to represent themselves in driving under restraint cases in court.  Sometimes a pro se defendant (a person without a lawyer) will achieve a reduced charge in a driving under restraint case and maybe even avoid jail time.  However, the person soon learns thereafter that because they pleaded guilty to a moving violation during the period of restraint that they will now lose their license for 1 year (and they are not eligible for any kind of “red license” , “work license”, or “probationary license” during this 1 year period).  Thus due to the potential collateral consequences at DMV, driving under restraint cases can be much more complex than simply rushing through the court process to get a plea so that one may return home to catch the last few minutes of Orange is the New Black on Netflix.  Achieving a good resolution in the criminal case is only half the battle.

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pexels-photo-860378Although it’s now possible under Colorado law to seal certain drug convictions that entered on or after July 1, 2011, determining eligibility and navigating the process can very complex.  Different rules apply depending upon when the conviction entered.  There are three (3) “main groups” of rules for sealing drug convictions which are separated by the year of conviction.  The first group applies to convictions which entered before July 1, 2008.  The second group applies to convictions entered between July 1, 20018 and June 30, 2011.  The third and final group applies to convictions that occurred on or after July 1, 2011.

The following types of drug convictions are eligible for a record seal if the conviction occurred on or after July 1, 2011.  The petition should be filed in the district court of the district where the conviction occurred.  If the drug conviction is a “petty offense” or a “class 2 or 3 misdemeanor” in article 18 of title 18, CRS, a petition to seal may be filed 3 years after the release of the person from supervision (i.e. supervised or unsupervised probation, etc.) or the final disposition of all criminal proceedings against the person, whichever is later.

“Class 1 misdemeanor” convictions pursuant to article 18 of title 18, CRS may be filed 5 years after the date of final disposition of all criminal proceedings or the release of the person from supervision, whichever is later.

“Class 5 and Class 6 felony offenses” are eligible to be filed 7 years after the person’s release from supervision or 7 years after the date of the final disposition of all criminal proceedings against the person, whichever is later.  These provisions thus far seem pretty straightforward, but here’s where it gets tricky.  Class 5 and 6 felony offenses are eligible if they are described in 18-18-403.5, CRS as they existed prior to October 1, 2013.  Class 5 and 6 felony offenses not listed in 18-18-403.5, CRS are eligible if listed in 18-18-404, CRS or 18-18-405, CRS as they exited prior to August 11, 2010.

A petition may be filed 10 years after the release of the person from supervision or the date of the final disposition of all criminal proceedings against the person, whichever occurs first for “all other offenses listed in article 18 of title 18, CRS”.

Now things get even more complicated.  The categories of eligible offense do not stop with petty offenses, class 2 or 3 misdemeanor offenses, class 5 or 6 felony offenses, and “all other offenses in article 18 of title 18, CRS”.  A separate subset of rules applies to offenses which are categorized under the law as “drug offenses” as follows.

Petitions to seal “petty drug offenses” in article 18 of title 18, CRS may be filed one (1) year after the release of the person from supervision or the conclusion of all criminal proceedings against the person, whichever is later.

Petitions to seal “level 2 drug misdemeanors” in article 18 of title 18, CRS may be filed 5 years after the person’s release from supervision or the conclusion of all criminal proceedings against the person, whichever is later.

Petitions to seal “level 1 drug misdemeanors” in article 18 of title 18, CRS may be filed 5 years after the person’s release from supervision or the conclusion of all criminal proceedings against the person, whichever is later.

Petitions to seal “level 4 drug felonies” may be filed 7 years after the person’s release from supervision or the conclusion of all criminal proceedings against the person, whichever is later.

Petitions to seal “all other felony drug offenses” in article 18 of title 18, CRS may be filed 10 years after the person’s release from supervision or the conclusion of all criminal proceedings against the person, whichever is later.

A petitioner who files a petition to seal a “petty offense” is ineligible for a record seal if she has been charged or convicted for a criminal offense since the date of the final disposition of all criminal proceedings against her or since the date of her release from supervision, whichever is later.  The possibility of the district attorney’s office objecting and weighing the factors in 24-72-704(1)(c) is not indicated in the provision of the statute relating to a “petty offense”.

A petitioner who files a petition to seal a “class 1, class 2, or class 3 misdemeanor in article 18 of title 18, CRS” is similarly ineligible under current law if she has been charged or convicted for a criminal offense since the date of the final disposition of all criminal proceedings against her or since the date of her release from supervision, whichever is later.  Additionally, the district attorney’s office must determine whether or not it will object to the petition in light of the factors in 24-72-704(1)(c), CRS.  These factors include whether the petitioner’s interest in sealing the records outweighs the public’s interest in retaining the records in the public domain, the severity of the offense to be sealed, the criminal history of the petitioner, the number of convictions and the dates of the convictions to be sealed, and the government’s interest in retaining the records.

If a petition is filed to seal class 5 or class 6 felony possessions offenses as indicated in 18-18-403.5, CRS (as existed before October 11, 2013) and as indicated in 18-18-404, CRS and 18-18-405, CRS (as existed prior to August 11, 2010), the district attorney’s office must determine whether or not it will object to the petition after considering the factors in 24-72-704(1)(c).  A petitioner is ineligible if he has been charged or convicted for a criminal offense since the date of the final disposition of all criminal proceedings against her or since the date of her release from supervision, whichever is later.

Similarly, if a petitioner files a petition to seal any other offense listed in article 18 of title 18, CRS, the district attorney’s office may object to the sealing utilizing the factors in 24-72-704(1)(c), CRS and the petitioner must not have been charged or convicted for a criminal offense since the date of the final disposition of all criminal proceedings against her or since the date of her release from supervision, whichever is later.  Unfortunately, for these types of offenses, the district attorney has the absolute power to object to the petition and block the sealing of the record.  Accordingly, if the district attorney objects, the court shall dismiss the petition.

When a petitioner files a petition to seal a “drug petty offense” in article 18 of title 18, the petitioner must not have been charged or convicted for a criminal offense since the date of the final disposition of all criminal proceedings against her or since the date of her release from supervision, whichever is later.  The possibility of the district attorney’s office objecting and weighing the factors in 24-72-704(1)(c) is not indicated in the provision of the statute relating to “drug petty offenses”.

The possibility of the district attorney objecting, the balancing test for the court, the factors enumerated under 24-72-704(1)(c), and the requirement that the petitioner not have been charged or convicted for a criminal offense since the date of the final disposition of all criminal proceedings against her or since the date of her release from supervision, whichever is later, all apply to the following offenses to be sealed.  These offenses include: “level 1 or 2 drug misdemeanors in article 18 of title 18, CRS” and “level 4 drug felony possession offense”.

With regard to “any other felony drug offense in article 18 of title 18, CRS”, the district attorney has the absolute power to object to the petition and block the sealing of the record.  For these remaining offenses, if the district attorney objects, the court shall dismiss the petition.

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pills-3114366__340Some drug cases where the conviction date occurred between July 1, 2008 and June 30, 2011 in Colorado can be sealed.  Specific procedures and criteria pertain to these “magical dates” (July 1, 20018 through June 20, 2011) enacted by the legislature.

Which types of conviction records can be sealed?  Petty and Misdemeanor drug convictions are eligible.  Also, Felony convictions related to Class 5 or Class 6 Felony offenses may be sealed.  However, cases which are ineligible are those related to the following: 1) possession with intent to manufacture, dispense or sell drugs; 2) attempt or conspiracy to sell, dispense, or manufacture drugs; 3) selling, manufacturing, or dispensing drugs.

There is a waiting period for sealing these convictions.  The waiting period is 10 years or more after the date of the final disposition of all criminal proceedings or the petitioner’s release from supervision concerning a criminal conviction (whichever is later).  Furthermore, the petitioner must not have been charged or convicted of a criminal offense in the 10 or more years since the date of the final disposition of all criminal proceedings against the petitioner, or the petitioner’s release from any forms of supervision, whichever is later.

Thus, yes some drug convictions are eligible, but a petitioner must qualify to the EXACT criteria listed above, otherwise chances are that the petition to seal will be denied.

Court fines, restitution, late fees, and any other fees outstanding in the case must be paid in advance of filing.  A petition to seal criminal conviction records pertaining to convictions that occurred in Colorado between July 1, 21008 and June 30, 2011 may be filed once every 12 months.  The petition should be filed in the district court in the county where the conviction occurred.

If the court determines that the petition is sufficient on its face then the court will set the case for a hearing on the petition.  It is important that the petitioner be prepared for the hearing.  The court will use a balancing test to determine if the petitioner’s interest in sealing the records outweighs the public’s interest in retaining the records.  Many of the factors the Court will utilize in the balancing test include the following: the government’s interest in retaining the records in public view, the severity of the offense for which the petitioner has requested a record seal, the dates and number of convictions the petitioner is requesting to be sealed, the overall criminal history of the petitioner, and the district attorney’s position on the sealing.  It is important that the petitioner be able to articulate at the hearing how her interest in sealing the records outweighs the public’s interest.  If the petitioner cannot convince the court of the unwarranted adverse consequences to the petitioner of retaining the records in the public domain, then the petitioner may lose the hearing and not achieve a record seal.

If, however the petitioner is successful, then it is critical that the petitioner request that the civil suit to seal the records is also sealed.  Otherwise the underlying criminal records will be sealed however the petition to seal (with all of the criminal information contained in the petition) will remain open to public view.

A downside to not convincing the court to seal the records or not carefully reading the statute to determine eligibility before filing is that the petitioner will actually create an additional court case referencing the details of the underlying criminal case.  In other words, not only will the petitioner still have open records in the criminal case for public view, the public may also now view a civil suit which references the details of the criminal case.  Thus, the petitioner has now essentially doubled some of the records in public view that she was trying to seal.  Thus creating a “one step forward, two steps back” scenario regarding the petitioner’s attempt to get the case off her record.

Successfully sealing a person’s criminal history records can very powerful.  It can have an enormous impact upon a person’s approach/ability to obtain a job, apply for schooling, social status, and countless other areas where not having a criminal record is important.  Attention to detail, preparation, and a firm understanding of the law and process are critical to correctly sealing criminal drug conviction records in Colorado.

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freestocks-org-126848-unsplash-1024x683It is possible to seal drug convictions in Colorado for cases where the conviction occurred before July 1, 2008.  Specific rules apply for the process and eligibility for these convictions.  Eligible cases are as follows: petty offenses or misdemeanor offenses in violation of Article 18 of Title 18, CRS.  Class 5 and Class 6 Felony convictions are also eligible.  These felony convictions however cannot relate to the following: 1) possession with intent to manufacture sell or dispense drugs; 2) conspiracy or attempt to dispense, manufacture or sell drugs; and 3) dispensing, manufacturing or selling drugs.

Further criteria requires that the prosecutor not object to the sealing and that the petitioner pay the prosecutor’s office for their legal fees and costs incurred as a result of the petition.  The petitioner is also responsible for the court’s filing fees.

All fees and restitution must be paid prior to filing.  If a petitioner still owes criminal restitution to a victim, or late fees, court costs, etc.  The petition will be denied.  Thus, obviously it makes sense to contact the clerk’s office in the district where the petitioner will be filing to determine if all fees have been paid in advance of filing.

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file00059914429Picture yourself enjoying Colorado’s blue sky and sunshine and reaching into your mailbox to find this little “gem”:

Colorado Department of Revenue records indicate that your ignition interlock device has prevented the operation of a motor vehicle in three of twelve consecutive reporting periods due to excessive blood alcohol content.  In accordance with CRS 42-2-132.5 the period of your driver license interlock restriction is hereby extended for an additional one (1) year from the current expiration of your restriction.  If we do not receive a new lease agreement by the Order of Suspension effective (date indicated in letter) through the extended restricted licensing period, your privilege to operate a motor vehicle in Colorado will be suspended.  If suspended, you must immediately surrender any driver licenses and/or permits in your possession to any driver license office.”  [Credit to: Colorado Department of Revenue, Driver Control Section, Colorado Division of Motor Vehicles, Standard Letter to Respondent, Letter# dL408 (2017)]

What should you do? Panic?  Ask you neighbor for advice?  Sign-up for another year with that damn interlock machine?  The answer is no, no, and no.  You should immediately request a hearing.  As of the date of this blog post, DMV ignition interlock violation hearings are backlogged  6-8 weeks just to receive a Notice of Hearing letter and you must first secure a spot on a waiting list.  As soon as your name appears at the top of the waiting list, the Hearings Division will mail you a Notice of Hearing letter setting the hearing.  Most of the hearings anymore are held via telephone.  If at all possible an in-person hearing is typically better than a telephone hearing.  However more and more hearings are being scheduled telephonically and a Respondent may not have a choice.  If a hearing is requested, the Hearings Division may postpone the effective date of the extension until after the hearing.  It is vitally important for a Respondent to clarify this information with the Hearings Division and determine the status of the driver’s license until the hearing.

What does 3 out of 12 reporting periods mean?  This can be confusing.  A “reporting period” is a month, and is defined the Code of Colorado Regulations as the first and last days of a calendar month.  The violations must occur in 3 out of 12 consecutive months.  The 12 months must be consecutive, the 3 months reporting violations do not need to be consecutive.

What is “excessive blood alcohol content”?  Excessive alcohol content for purposes of the ignition interlock machine means a BAC of .025 or greater.

How does DMV monitor the ignition interlock device?  At least every 60 days, a driver must have the interlock device inspected by the interlock company.  There are 4 ignition interlock companies approved in Colorado at the current time:  Guardian, Intoxalock, #1 A LifeSafer of CO, and 1A Smart Start, Inc.  At this inspection, the interlock company will download the data records and forward them to DMV.  An interlock provider is supposed to notify a driver at the time of inspection if there are any violations.  However, a failure of the interlock company to advise a driver of any violations will not win an ignition interlock violation hearing for a Respondent.

What if a driver gets their regular unrestricted license back before violations are reported to Colorado DMV- can Colorado DMV still cause an ignition interlock extension?  The short answer is yes.  Even if a driver gets their unrestricted full privileges back, they can still be subjected to an ignition interlock extension for violations that occurred before the driver got their license back.

According to the Code of Colorado Regulations, if there is evidence of circumvention of an interlock device, an ignition interlock company will file a report of circumvention to the Colorado Department of Revenue.  If a police officer detects circumvention of the interlock device, he/she may file a report with the Colorado Department of Revenue and may file criminal charges in the appropriate county court.

The sole issue at a hearing for an extension of an ignition interlock period is whether “lockouts” occurred in 3 of any 12 consecutive reporting periods, and if proven, to then determine the length of the extension.

A Hearing Officer may determine the following as “aggravating factors” in determining an extension period: 2 or more lockouts in 1 month, a prior extension for lockouts, a pattern of readings consistent with attempted drinking and driving, any BAC readings of .05 or higher, lockouts in more than 3 of the 12 consecutive months at issue, and any lockouts in the last 6 months of an ignition interlock lease agreement.

A Hearing Officer may determine the following as “mitigating factors” in determining an extension period: any factors the driver may submit in mitigation (obviously this is very subjective), attendance at alcohol treatment after the last lockout, only 1 lockout in each of the 3 months and no lockouts in any other months at issue, more than 1 year remaining of the interlock requirement, and alcohol readings subsequent to the last lockout indicating that the driver walked away from the vehicle and did not re-attempt to start it after consuming alcohol.

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