Increased Eligibility for Sealing Criminal Records
The Colorado legislature recently passed a bill permitting the sealing of criminal records (and convictions) that the law did not allow to be sealed before. In the past, the only way a case could usually be sealed is if the case was dismissed, the defendant wasn’t charged, or the defendant was acquitted. If you believe your case is eligible for sealing and are interested in trying to seal an old conviction, contact our office.
- Repeals and reenacts several statutes related to the sealing of criminal justice records.
- Creates a simplified record sealing process that allows a defendant to request sealing as part of a criminal case instead of requiring a defendant to file a separate civil action.
- Simplifies the process for a defendant to seal criminal justice records whenever a case against a defendant is completely dismissed, the defendant completes a diversion program and no charges are filed, or a defendant completes a deferred judgment and sentence and all counts are dismissed.
- Expands the ability of a defendant to petition to seal criminal justice records in cases that result in a conviction as follows:
- If the offense is a petty offense or a drug petty offense, the motion may be filed one year after the case or any sentence is completed. The court shall automatically seal the conviction If the defendant has not been convicted of a criminal offense since completing the sentence.
- If the offense is a class 2 or class 3 misdemeanor or any drug misdemeanor, the motion may be filed two years after the case or any sentence is completed. The district attorney may object to the sealing. The district attorney is also obligated to contact the victim of any Victims’ Rights Act (VRA) crime and advise the court of the victim’s objection, if any. If there is no objection, the court shall seal the records if the defendant has not been convicted of a criminal offense since the completion of the case and sentence. If the district attorney or the victim objects, the court shall set the case for a hearing on the petition.
- If the offense is a class 4, class 5, class 6 felony, or a level 3 or 4 drug felony, or class 1 misdemeanor, the motion may be filed three years after the case or any sentence is completed. The district attorney may object to the sealing. The district attorney is also obligate to contact the victim of a VRA crime and advise the court of the victim’s objection, if any. If there is no objection, the court may seal the case without a hearing. If the district attorney or the victim objects, the court shall set the case for a hearing on the petition.
- For any other offense not otherwise excluded from sealing, the defendant may petition the court five years after the case or any sentence is completed. The court shall set the case for a hearing on the petition.
- At any hearing for a petition to seal records of a conviction, the defendant shall have the burden of showing that the harm to the privacy of the defendant or the dangers of unwarranted, adverse consequences to the defendant outweigh the public interest in retaining public access to the conviction records.
- Restricts the following types of criminal convictions from eligibility for sealing:
- Traffic offenses or infractions;
- Driving under the influence or driving while ability impaired:
- Offenses where the underlying factual basis involved unlawful sexual behavior as defined in § 16-22-102(9);
- Child abuse;
- Offenses where the defendant was subject to sentences involving extraordinary aggravating circumstances pursuant to§ 18-1.3-401(8);
- Extraordinary risk crimes pursuant to § 18-1.3-401 (10);
- Crimes involving a pregnant victim pursuant to§ 18-1.3-401(13);
- Special offenders pursuant to§ l 8-18-407;
- Offenses where the underlying factual basis involved domestic violence as defined in§
- l 8-6-800.3;
- Sexual offenses as defined in § 18-3-Part 4;
- Any crime of violence pursuant to § 18-1.3-406;
- Any felony crime that is also a VRA crime as defined in § 24-4.1-302( l );
- Aggravated cruelty to animals;
- Any class 1, 2, 3 felony, or a level 1 drug felony;
- Identity theft;
- Unlawful termination of pregnancy; and
- Allows for the sealing of any misdemeanor, even if it fits the above exceptions, if the defendant shows by clear and convincing evidence that the petitioner’s need for se ling of the record is significant and substantial, the passage of time is such that the petitioner is no longer a threat to public safety, and the public disclosure of the record is no longer necessary to protect or inform the public.
- Allows for retroactive application of the new scaling statutes to all eligible cases.
- Clarifies that an order sealing arrest or criminal records does not deny access to the records by any court, law enforcement agency, criminal justice agency, prosecuting attorney, or person required by law to conduct a criminal background check.
- Clarifies that an order sealing conviction records does not vacate a conviction, and that sealed cases may still be used in the investigation and prosecution of any case, including subsequent prosecutions.
- If a defendant is convicted of a new criminal offense after an order sealing conviction records is entered, the court shall order those records unsealed.
Effective Date: August 2, 2019
Leave a Comment