Articles Posted in Record Sealing

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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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photo_59583_20160110Colorado law requires all people arrested for any Felony offense to submit a DNA sample in relation to arrests on or after September 20, 2010.  Felony offenses include those charged by complaint, information, and indictment.  It even includes those not arrested who appear in court on a summons.

The law enforcement agency who completes the booking is responsible for the DNA collection process.  If DNA is not collected through the booking process then the Court is required to order the defendant to submit to DNA collection through the investigating agency responsible for the fingerprints in the case.

Law enforcement officers are authorized to use reasonable force to collect a DNA sample and thereafter are required to submit the sample to the Colorado Bureau of Investigation (CBI) for testing.  If a defendant’s DNA sample is already on file with CBI, then the law enforcement agency should not collect a new DNA sample.

Fortunately for those who’ve had their cases dismissed outright, have been found not guilty at trial, resolved their case to a Misdemeanor rather than a Felony offense, or were arrested but never charged, a process exists to expunge the collected DNA.  The process goes through the CBI rather than the Colorado court system.

A written request must be submitted to the CBI including the following information: date of arrest, or other date when the DNA sample was collected, the person’s name, date of birth, and address, the police agency which collected the DNA, a listing of the charges filed, which court the case is in, the case number, and a declaration that the person’s case qualifies for expungement.

Thereafter, the CBI submits an inquiry to the district attorney’s office who prosecuted the case.  Within 90 days after the CBI receives a request to expunge DNA, the CBI shall destroy the DNA and the results of the testing from both the state index system and the federal combined DNA index system unless the CBI receives notice from the district attorney’s office that the person does not qualify to have his/her DNA expunged.

Within  30 days after CBI receives notice from the district attorney’s office or at the end of the 90 day period referenced-above, whichever is earlier, CBI shall notify the person making the request that the DNA has been destroyed and the record expunged or why CBI didn’t destroy and expunge the records.

DNA evidence shall not be used against a person in a criminal case if the DNA was required to be destroyed and expunged or obtained after the deadline for destruction or expungement.

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IMG_7083-768x1024As of August 10, 2016, Colorado criminal defendants who have had their cases completely dismissed can go through a quick, streamlined, and simple process to seal their criminal records pursuant to CRS 24-72-702.5.  Dismissals under this statute relate to not only outright dismissals but also acquittals (not guilty at trial), a successfully completed deferred judgment, and a successfully completed diversion.  Cases that were dismissed prior to August 10, 2016 are not eligible for the streamlined process.  Cases that were dismissed prior to August 10, 2016 and are otherwise eligible for a record seal may be sealed under the standard record sealing process pursuant to CRS 24-72-702.

Juvenile records which qualify for an expungement are not eligible for the streamlined record sealing process referenced above.  Juvenile records, if eligible, may be expunged pursuant to CRS 19-1-306.  In Colorado, record “sealing” relates to adult criminal records, whereas “expungement” relates to juvenile records.

The simplified process permits a Colorado criminal defendant to make an oral motion in court to have their records sealed or subsequent to the dismissal by filing a later written motion with the Court.  Under this simplified process, the Court shall grant the request.  This saves the defendant from filing a separate civil action and paying the much higher fee to seal the records.  It also saves the Colorado criminal defendant from the burden of showing that his interest in sealing the records outweighs the public’s interest.  Plus, under this simplified process, the Court does much of the work for the defendant and provides a copy of the Order to Seal to each entity who may have records related to the dismissed action.  The defendant may also provide the Order to Seal to additional entities under the Order.

There is a record sealing fee of $65 related to this simplified process (versus $224 under the standard process).

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file0001770792325-1024x768Maybe you went to trial and lost. Maybe the prosecutor bullied you into a plea deal that you’re now regretting because your record pops-up at every job interview you go to. Regardless of your particular situation, things just got a heck of a lot better for individuals in the world of sealing records in Colorado. You can now seal convictions for petty offenses and municipal offenses in Colorado. Previously, a defendant in Colorado could only seal cases that were completely dismissed or convictions for certain drug offenses if the defendant fit a lengthy laundry list of criteria for the drug offense to be sealed.

With this new law, defendants who have been convicted of such things as assault, battery, shoplifting, domestic violence, disturbing the peace, theft, and many other municipal offenses can now petition the court to seal their records. This is a huge advancement for Colorado’s record sealing laws! If you were convicted of a charge in courts such as Westminster Municipal Court, Littleton Municipal Court, Aurora Municipal Court, or any other municipal court in Colorado, you may be eligible. County Court petty offenses are included too.

Convictions records under this new statute include arrest and criminal records information and records regarding a judgment of conviction. In other words, the case doesn’t have to be dismissed before you’re eligible for a record seal. If you pled guilty and were convicted, you are potentially eligible to seal the records. As with all record sealings in Colorado, the defendant has to meet certain eligibility criteria.

Firstly, the offense has to be a petty offense or municipal offense. The petitioner must file the petition to seal at least three (3) or more years after the date of the final disposition of all criminal proceedings against her or the release of defendant from supervision, whichever is later. And, the defendant must not have been charged or convicted for a felony, misdemeanor, or misdemeanor traffic offense in the three (3) or more years since the date of the final disposition of all criminal proceedings or the defendant’s release from supervision, whichever is later.

The convictions records that are to be sealed cannot be for a misdemeanor traffic offense committed by a commercial learner’s permit driver or commercial driver or by the operator of a commercial motor vehicle defined by statute.

A filing fee of two hundred dollars ($200.00) is required. A petitioner may file a petition to seal these types of records once every twelve (12) months. Thus, if the petition is not granted the first time, she may file again. If a second petition is untimely filed within the 12 months indicated by statute, the court shall dismiss it.

If the petition is granted, the Order sealing the conviction records does not vacate a conviction, however the petitioner may thereafter lawfully state that they have not been convicted!

If an Order is entered sealing the records and thereafter the petitioner is convicted of a new misdemeanor traffic offense, felony, or misdemeanor, the court shall order the conviction records to be unsealed.

A Petitioner must may off any restitution, fines, court costs, late fees or other fees ordered by the court before he may petition the court to seal the records.

If the court determines that the petition is sufficient on its face, the court will set a hearing on the matter. At the hearing, the petitioner is required to show that their interest in sealing the records outweighs the public’s interest in retaining the records. In determining if the records should be sealed, the court will look at, at minimum, the severity of the offense to be sealed, the defendant’s criminal history, the number and dates of convictions that the petitioner is requesting to be sealed, and the need for the government to retain the records.

Once an order to seal the records is entered, criminal justice agencies and the petitioner may properly reply that no such records exist.

Employers, officials, landlords, employees, and state and local government agencies shall not in any interview or application, or any other way require an applicant to disclose information in sealed records. Further, an applicant is not required to include a reference to or information concerning sealed records and may state that they have not been criminally convicted.

If multiple offense convictions in a single case are sought to be sealed, each conviction must be eligible under the statute.
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file0001703028197-1024x607The 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.
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file000883782302-1024x768As 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.
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