Articles Posted in Record Sealing

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

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

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

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

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

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

On the other hand, if an applicant has a record that has been dismissed, all of the records will likely still appear in a person’s background. And often times, even though no conviction enters on a dismissed case, many potential employers are reluctant to hire an applicant with a “criminal history”. It seems that often times employers do not distinguish between an arrest, charge, and a conviction. Thus any record of criminal activity, regardless of the actual outcome, may negatively impact a job applicant. Thus it is unfortunate to see that the Colorado Court of Appeals has determined that the benefits of a record seal do not apply to those who have successfully completed a deferred sentence in a DUI case.
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As more and more people are heading back to work in the recovering economy, I find my office inundated with calls for help in sealing criminal records. Open records of an arrest, criminal court proceeding, police records, sheriff’s department records, and probation records can be devastating to an applicant seeking employment in a competitive marketplace. Many applicants with criminal records report passing through the interview and hiring process, but subsequently being rejected as a result of a “final step” background check. Some employers are now running background checks before an applicant will even be considered for a position.

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

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

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

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