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The Complicated Law of Sealing Drug Convictions in Colorado that Occurred On or After July 1, 2011

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.

Attorney Monte Robbins has extensive experience in sealing criminal records including petitions to seal multiple criminal records, complicated sealings, and cases where the district attorney has objected to the sealing.  Contact Attorney Robbins today to discuss your record sealing needs.

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