Articles Posted in Drugs

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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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various-abusive-drugs-1194938Before Colorado law enforcement searches a person’s premises, auto, or person, law enforcement may question the person as to whether or not the he/she has a needle or syringe that may prick/puncture/poke/stick the officer.  Law enforcement may also inquire as to whether the person has a needle or syringe on their premises or in their automobile.  If the person responds affirmatively or voluntarily tells law enforcement that he or she has a needle or syringe on their person, on their premises, or in their vehicle, prior to an officer’s search, assessment, or treatment, then the police officer shall not arrest or charge the person for the needle or syringe.

Similarly, the police officer shall not arrest or charge a person for unlawful possession of a controlled substance for any small/minuscule/residual amount of drugs that may be present in the used needle or syringe.  Further, the district attorney for the Colorado county where the incident occurred shall not charge the person for the needle or syringe or any small amount of drugs that may be contained within the needle or syringe.

However, the findings of the search may be used by the police to establish probable cause or reasonable suspicion for a criminal offense assuming that the original stop or search was legal.

A person shall not be charged with possession of drug paraphernalia or small amounts of drugs contained within a needle or syringe when asked by emergency medical personnel, or other first responder, if the person possesses a needle or syringe that may poke/stick/puncture/prick the medical personnel or first responder in advance of treating or assessing a person.  If the person discloses the needle or syringe in answer to the first responder or medical personnel’s inquiry, or voluntarily discloses prior to any inquiry, then the person qualifies for the “no charges provision” of this statute.  Identically to the law enforcement searches referenced above, the district attorney shall not charge a person with possession of drug paraphernalia, or a small amount of drugs within a needle or syringe, who discloses the existence of a needle or syringe prior to assessment or treatment by medical personnel or first responders.

Clearly the aim of the statute is law enforcement/medical personnel/first responder safety.  This is a good law that doesn’t punish a person who discloses the existence of a needle or syringe and protects law enforcement/medical personnel/first responders from potentially dangerous drug paraphernalia.

If a person is found guilty of possession of drug paraphernalia in Colorado, he or she will have a record of conviction for a drug petty offense and be punished by a fine of not more than $100.

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