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Expungement and Sealing of Non-Conviction Criminal Records in Colorado
The sealing and expungement of non-juvenile, non-conviction criminal records and arrest records in Colorado is governed by Colorado Revised Statutes (“C.R.S.”) § 24-72-701, et seq. Although similar, sealing and expungement differ in the degree to which the criminal record is removed from public access. More specifically, when a criminal or arrest record is sealed, it is no longer publicly accessible; however, it still exists in court and law enforcement systems and, accordingly, may be accessed by certain law enforcement agencies or where a court order to access the record is obtained. In contrast, expungement is the deletion of the record entirely such that the record no longer exists – neither courts nor law enforcement agencies will have access to the record.
Under Colorado law, expunging non-juvenile, non-conviction records is relatively rare and, in fact, expungement may only be obtained where a person was charged or arrested based on mistaken identity and no charges were subsequently filed against him or her. See C.R.S. § 24-72-701.5. Accordingly, the vast majority of people that are eligible to have their criminal or arrest record redacted from public access are only eligible to have it sealed, as opposed to fully expunged.
Additionally, this posting only addresses criminal records that did not result in a conviction for a criminal offense – for example, arrest records, charges and dismissals, diversion programs, etc. While convictions may be eligible for sealing under Colorado law, this article does not address the process or circumstances under which criminal records for convictions may be sealed.
Requirements for Sealing a Non-Conviction Criminal Record in Colorado Courts
Generally speaking you need to meet the following requirements in order to qualify for sealing charges or arrests reflected on your criminal record:
– You were charged with a crime but were acquitted;
– Your case was dismissed;
– You completed a diversion agreement pursuant to C.R.S. § 18-1.3-101;
– You were arrested and have an arrest record, but you were not charged in court and the statute of limitations for the offense for which the you were arrested that has the longest statute of limitations has run;
– You were arrested and have an arrest record, but you were not charged in court, the statute of limitations has not run and you are no longer being investigated by law enforcement for commission of the offense; or
– You have a record involving a case that was dismissed due to a plea agreement in a separate case, more than 10 years have passed since the final disposition of all related criminal proceedings against you, and you have not been charged with another crime in that 10 year period.
See C.R.S. § 24-72-702(1)(a)(I), (1)(a)(III). However, even if you meet the requirements enumerated above, you still may not be eligible for sealing your criminal or arrest record where:
– An offense was not charged due to a plea agreement in a separate case;
– A dismissal occured as part of a plea agreement in a separate case; or
– You still owe restitution, fines, court costs, late fees, or other fees ordered by the court in the case that is the subject of the petition to seal criminal records, unless the court that entered the order for restitution, fines, court costs, late fees, or other fees has vacated the order.
See C.R.S. § 24-72-702(1)(a)(II). Additionally, certain charges are not eligible to be sealed. Those charges include:
– A class 1 or class 2 misdemeanor traffic offense
– A class A or class B traffic infraction
– Records pertaining to a deferred judgment and sentence for an offense for which the factual basis involved unlawful sexual behavior, as defined in C.R.S. § 16-22-102(9)
– Records pertaining to a deferred judgment and sentence of C.R.S. § 42-4-1301(1) or (2)
– Records pertaining to a deferred judgment and sentence for an offense concerning the holder of a commercial driver’s license as defined in C.R.S. § 42-2-402, or the operator of a commercial motor vehicle as defined in C.R.S. § 42-2-402
See C.R.S. § 24-72-702.
Procedure for Sealing Criminal Records in Colorado Courts
In general, a person must file a petition in district court in the Colorado civil court system requesting that their criminal record, or parts of it, be sealed. See C.R.S. § 24-72-702(1)(a)(I). Notably, the Colorado Judicial Branch website provides instructions and forms for completing a petition to seal arrest and criminal records including how to file the petition with the courts. A separate petition needs to be filed for each criminal arrest or charge that a person is trying to seal.
From a procedural perspective, all petitions to seal criminal records shall include a listing of each custodian of the records to whom the sealing order shall be directed as well as information identifying the specific record that the individual is attempting to seal. See C.R.S. § 24-72-702. Typical record custodians that should be named in the petition include:
– The county court, municipal court, or district court where the criminal action, if any, was filed
– The police or sheriff’s department that made the arrest
– The Colorado Bureau of Information, which keeps Colorado state criminal history records
Further, because the petition needs to accurately name the entities which have information relating to the criminal record being sealed, appropriate investigation should be done before filing the petition to determine what specific entities should be named. For example, if the person was only arrested but no charges were filed and no court case was ever initiated, then a court would not have to be named in the petition since there would be no court file relating to the arrest record. Conversely, if a court case is initiated and the charges later dismissed, then a court would have to be named in the petition because there would be a court file pertaining to the charges.
Once the petition is filed, the court will review the petition and may either deny the petition or set a hearing for the petition. See C.R.S. § 24-72-702(b). If the petition does not demonstrate on its face that the petitioner would be entitled to seal his or her criminal record – for example, where the criminal record does not qualify for sealing – then the court will deny the petition without a hearing.
If, however, the petition does demonstrate on its face that the petitioner would be entitled to seal his or her criminal record, then the court shall set a hearing. The petitioner is then responsible for notifying the prosecuting attorney in the underlying action and any other person or agency identified in the petition. At the hearing, the court shall consider whether the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records. If the court finds that the petitioner’s privacy concerns outweigh the public interest than it shall order the records to be sealed; conversely, if the court finds otherwise it shall deny the petition. See C.R.S. § 24-72-702(1)(b)(2).
Additionally, where a petition is denied it may only be re-filed once every 12 months. See C.R.S. § 24-72-702(5).
© 2016 J.D. Porter, LLC; Jordan Porter. Denver, Colorado.