Record Sealing

order to seal, you can petition the court to seal your case as long as you meet one of the above criteria.  See C.R.S. § 24-72-705(1)(b).

What is a Dismissal?

A dismissal means the district attorney declines to prosecute your case any further.  This can be because the district attorney feels they do not have enough evidence to prove you committed a crime, the district attorney believes you did not commit a crime, the district attorney feels it is in the interests of justice to not prosecute the case, or for any other reason the district attorney feels your case should be dismissed. 

What is an Acquittal?

Acquittal means you went to trial and the jury or judge found you not guilty. 

What is a Deferred Prosecution?

A deferred prosecution is when the district attorney agrees to continue your case for a period of time while you complete certain conditions (community service, substance abuse treatment, etc.).  If you complete the condition by your next court date, the district attorney dismisses your case.  A deferred prosecution is the same as a dismissal except that the district attorney requires some condition in exchange for the dismissal of your case.

What is a Deferred Judgment and Sentence?

A deferred judgment and sentence means you pleaded guilty to an offense but the court defers judgment for a period of time, typically one to two years, and during that time you complete some conditions decided by the district attorney.  If you complete the conditions within the time period, your guilty plea is withdrawn and the case is dismissed.  At that point, you are eligible to seal your record.  However, while you are completing the conditions of the deferred judgment and sentence, your guilty plea will count as a conviction on your record.  In addition, if you fail to complete a condition of the deferred judgment and sentence, the district attorney can move to revoke the deferred judgment and sentence and, instead of being able to reset the case for a jury trial, because you already pleaded guilty, you will face resentencing.  

 

If your case was dismissed, you were acquitted, you received a deferred prosecution, or you successfully completed a deferred judgment and sentence, you are likely eligible to have your record sealed automatically.

What is a Conviction?

A conviction means you either pleaded guilty and it wasn’t a deferred judgment and sentence or you went to trial and the jury found you guilty. 

Can I Seal a Conviction?

Colorado law also allows for many criminal conviction records to be sealed as well.  To seal a criminal conviction record, you or your attorney must file a motion with the court where the criminal conviction occurred.  See § 24-72-706(1).  For a petty offense, as long as the motion is sufficient on its face and you meet the criteria to seal your record, the court will automatically seal your record.  See § 24-72-706(1)(f)(I).  However, if you are attempting to seal a conviction record for a misdemeanor or felony, you will need to send notice to the district attorney’s office.  If the district attorney objects, the court will set the motion for a hearing.  See § 24-72-706(1)(f)(II); (III).  If the district attorney does not object and you meet all the requirements, the court will grant the motion and seal your record.  See id.  If the court sets a hearing, you will need to prove to the court that the harm to your privacy or the dangers of unwarranted, adverse consequences to you outweigh the public interest in retaining public access to the conviction records.  See § 24-72-706(1)(g).  To determine this, the court will look at the severity of the offense you are sealing, your criminal history, the number of convictions and dates of the convictions for which you are seeking to have the records sealed, and the need for the government agency to retain the records.  See id. 

 

Additionally, there is a waiting period to seal criminal convictions based on the severity of the crime you are seeking to seal.  The following are the waiting periods for each level offense:

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• Petty offense or drug petty offense – one year from the later of the final disposition of criminal proceedings or release from supervision. § 24-72-706(1)(b)(I).

• Class 2 or 3 misdemeanor or any drug misdemeanor – two years from the later of the final disposition of criminal proceedings or release from supervision.  § 24-72-706(1)(b)(II).

• Class 4, 5, or 6 felony; level 3 or 4 drug felony; or class 1 misdemeanor – three years from the later of the final disposition of criminal proceedings or release from supervision.§ 24-72-706(1)(b)(III).

• All other offenses – five years from the later of the final disposition of criminal proceedings or release from supervision.§ 24-72-706(1)(b)(IV).

 

What Convictions are not Eligible for Sealing?

The following convictions are not eligible to seal:

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• Class 1 or class 2 misdemeanor traffic offenses;

• Class A or class B traffic infractions;

• Conviction for a violation of section 42-4-1301 (1) or (2);

• Conviction for an offense for which the underlying factual basis involved unlawful sexual behavior as defined in section 16-22-102 (9);

• Conviction for a violation of section 18-6-401; or

• Conviction that is subject to one or more of the following provisions:

  • Sentences for a crime involving extraordinary aggravating circumstances pursuant to section 18-1.3-401 (8);

  • A sentence for an extraordinary risk crime pursuant to section 18-1.3-401 (10);

  • Sentencing for a crime involving a pregnant victim, pursuant to section 18-1.3-401 (13);

  • Sentencing for a crime pertaining to a special offender pursuant to section 18-18-407;

  • Sentencing for a criminal conviction for which the underlying factual basis involves domestic violence as defined in section 18-6-800.3;

  • Sentencing for a criminal conviction for a sexual offense, pursuant to part 4 of article 3 of title 18;

  • Sentencing for any crime of violence pursuant to section 18-1.3-406;

  • Sentencing for a felony crime enumerated in section 24-4.1-302 (1);

  • Sentencing for a felony offense in violation of section 18-9-202;

  • Sentencing for an offense classified as a class 1, 2, or 3 felony or a level 1 drug felony pursuant to any section of title 18; except a class 3 felony in violation of section 18-18-106 (8)(a)(II)(B) as it existed prior to July 1, 1992; a class 3 felony in violation of section 18-18-406 (8)(a)(II)(B) as it existed prior to August 11, 2010; or a class 3 felony in violation of section 18-18-406 (6)(a)(II)(B) as it existed prior to October 1, 2013;

  • Sentencing for an offense in violation of part 1 of article 6 of title 18;

  • Sentencing for an offense in violation of section 18-5-902 (1);

  • Sentencing for an offense in violation of section 18-3.5-103 (4), (5), (6), (7), (8), and (9); or

  • Sentencing for an offense in violation of section 18-7-203.

 

See § 24-72-706(2)(a).

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However, a misdemeanor offense that is not eligible for sealing based on one of the above provision, is eligible for sealing if the district attorney consents to the sealing or if the court finds, by clear and convincing evidence, that the petitioner’s need for sealing 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.  See § 24-72-706(2)(b).

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While government agencies and other entities that are authorized to conduct background checks for certain reasons, like if you try to purchase a firearm, can see sealed convictions, sealing arrest records and convictions has huge advantages in housing and employment.  When an employer conducts a background check on a potential employee, any negative information can cost the potential employee the job.  Additionally, many employers do not understand what the difference is between a conviction and being charged with a crime.  A conviction means that you are guilty of the crime beyond a reasonable doubt, while being charged with a crime simply means the police had probable cause that you committed a crime.  In the criminal justice system, there’s a huge difference between these two things.  But, people without legal training do not understand this difference and will consider a record of an arrest the same as being found guilty of a crime even if you were acquitted.  Sealing your case will solve this problem.  Finally, if you made a mistake years ago and were convicted of a crime, sealing your record will allow you to erase a mistake that does not define you anymore. 

 

If you’re interested in sealing your case, contact the Law Office of Michael Swink today and speak with an attorney who is knowledgeable with Colorado’s sealing laws.