Robert D. Gustafson, Attorney At Law COLORADO SPRINGS TRIAL LAWYER
6538 Charter Drive Colorado Springs, CO 80918-1335 Phone (719) 260-1002 Toll Free (800) 410-1002 E-MAIL    ATTORNEY		Attorney Business Hours Attorney Availability Status FREE INITIAL CONSULTATION   Fax (719) 260-1003
SEALING COLORADO CRIMINAL RECORDS COLORADO SPRINGS CRIMINAL DEFENSE ATTORNEY
WELCOME I appreciate your interest perhaps I will become your attorney

Colorado Sealing Criminal Records - Colorado Springs. felonies, felony, felony offense, misdemeanors, misdemeanor, misdemeanor offense, petty offense, traffic offense - criminal allegations, conviction, probation, nolle, nolle prosequi, insufficient evidence, dismissal, straight dismissal, flat dismissal, deferred sentencing or deferred sentence & dismissal - domestic violence, prostitution & other criminal charges - court records, prosecution records, law enforcement records, police records, police reports, records expungement, expunging records. Court criteria and procedures to seal, notice to government agencies, unsealing records and exceptions to sealing criminal justice records.

        If you are reading this page, it is likely that at some point criminal charges were filed against you or a law enforcement agency initiated a criminal investigation.  Every criminal investigation or criminal prosecution leaves a paper trail. The fact that no charges were filed, or if filed - that charges were dismissed (by suppression, nolle, nolle prosequi, insufficient evidence, dismissal, straight dismissal, flat dismissal) or not guilty verdict entered does not erase this paper trail.  If you are eligible to seal criminal justice agency records, several good reasons for you to act as soon as possible.

    If criminal justice records are not sealed:

1.         You, persons with your written authorization, law enforcement agents, prosecutors, courts, probation officers and parole officers have access to the records, and likely the general public. 
           How difficult is it to locate criminal records?
               Colorado Criminal History Search or
               On-Line Colorado State Court Litigation History or
               El Paso County - District & County Court Records Search
                   Call, write or drop by the local court - request a name search
                   Not only is detailed information available, likely the court file is accessible on demand.

2.         If a subsequent criminal investigation of a similar nature arises, law enforcement officers are more likely to arrest, and prosecutors are more likely to charge plus less likely to dismiss or offer a favorable plea agreement.  Did it before, did it again.

3.         If subsequent charges are filed for an offense of a similar nature arises, prosecutors may seek to introduce evidence of the current investigation or criminal prosecution, even if charges were not filed at this time or the current case was dismissed.  They may argue admissibility of the current matter under theories of common plan-scheme-design, identity, modus operandi, motive, guilty knowledge, intent, lack of mistake, accident, legal justification (self defense, defense of property, lawful child discipline) or impeachment of witness credibility.  While the jury would be instructed as to the limited purpose for the evidence, jurors may think - Did it before, did it again. 
                   I've included very brief information regarding admissibility - refer to Admissibility Link
                   If subsequent charges are filed for an offense of a similar nature arises, prosecutors may seek to introduce evidence of the current investigation or criminal prosecution at the time of sentencing even if charges were not filed at this time or the current case was dismissed.  Prosecutors may  attempt use as an aggravating factor - requesting increase the seriousness of penalties.

        You may have the right to file a separate civil lawsuit in District Court requesting that criminal justice agency records be sealed.  Sealing does not happen automatically. Courts in El Paso County require a separate civil lawsuit to be filed for each matter to be sealed.

        Initial Court Review:  Denial Without Hearing
        Upon the filing of a petition, the court shall review the petition and determine whether there are grounds under this section to proceed to a hearing on the petition.  If the court determines that the petition on its face is insufficient or if the court determines that, after taking judicial notice of matters outside the petition, the petitioner is not entitled to relief under this section, the court shall enter an order denying the petition and mail a copy of the order to the petitioner.  The court's order shall specify the reasons for the denial of the petition   CRS 24-72-308(1)(b)(II)(A)

        Initial Court Review:  Hearing To Be Set
        At the time of filing of a petition, if the court does not determine that grounds exist on the face of the petition at that time for the court to deny the request to seal, the court is required to set a date for a hearing.  CRS 24-72-308(1)(b)(II)(A)

        Initial Notice to Agencies with Records to Seal
        If the court determines that the petition is sufficient on its face and that no other grounds exist at that time for the court to deny the petition under this section, the court shall set a date for a hearing and the petitioner shall notify the prosecuting attorney by certified mail, the arresting agency, and any other person or agency identified by the petitioner.  CRS 24-72-308(1)(b)(II)(B)

        The statutory language is ambiguous.  Does the statute require service by certified mail upon all agencies or just the prosecuting attorney?  It makes a great deal of difference in postage expense and time expended preparing certified mail.  Courts in El Paso County have interpreted the statute to require notice by certified mail only upon prosecutors, and notice to the remaining agencies with records to seal may be given via e-Service or regular U.S. Mail, postage pre-paid, evidenced by a certificate of mailing.  Refer to e-Filing & e-Service below regarding process service efficiency and cost reduction.  Courts in other counties may differ and require notice to all agencies by certified mail.

FINAL ORDERS HEARING TIMING - CRITERIA - COURT ORDER

APPROXIMATE TIMING

Attorney has published documents which facilitate preparation of a retainer agreement and the lawsuit.

1.  Link to retainer agreement data information sheet.  Document is not password protected.  The completed form may be faxed to the attorney for preparation of a proposed fee agreement.  Retainer agreement will be emailed to prospective client within 1 business day.         2.  Link to sealing lawsuit information sheet.  Document is password protected.  Password is provided to a client to expedite preparation of the petition to seal criminal justice records.  Client may drop off, mail, fax or email the completed information form to counsel.          3.  From the time counsel has received the executed fee agreement, trust deposit payment and the completed lawsuit information sheet, within a week to a week and a half, attorney will prepare the petition to seal criminal justice records and forward to the client in .pdf format (Adobe Reader ver. 5 or above).          4.  When client has executed the petition to seal, the original document can be returned to counsel via FedX overnight.  e-Filing with the court generally occurs within 1 business day from receipt.  Client's geographic distance need not pose a problem in lawsuit preparation or e-Filing.         5.  e-Filing acceptance frequently occurs within 1-3 business days from electronic submission; sometimes the same day.  At that time, a case number is available and the Court division has been assigned.  It is then possible to call the division clerk for a hearing date.  Final orders hearing is frequently set approximately 30 days from the date of setting with the division clerk.         6.  The court now e-Serves the final sealing order upon counsel; frequently within 1-3 business days from hearing date and sometimes the same day.  Counsel will then e-file and can e-Serve a notice and certificate of service.  If e-Served, immediately up e-Filing the agencies receive immediate notice and an electronic file of the sealing order.  Actual sealing of the records by the agencies depends upon how backlogged the agencies' records custodians may be.         7.  From the time client requests representation, it would not be uncommon to have a final order within approximately 6 weeks.

CRITERIA - SEALING COURT ORDER

In making a determination, the trial court should consider the severity of the offense sought to be sealed, the time which has elapsed since the conviction, the subsequent criminal history of the petitioner, and the need for the government agency to retain the records.  D.W.M. v. District Court, 751 P.2d 74 (Colo. 1988); People v. Bushu, 876 P.2d 106 (Colo. App. 1994).  The court may also consider factors relating to the strength of the case, petitioner's age and employment history, and various consequences if the records are not sealed.  The balance test allows for consideration of other factors on a case-by-case  basis.  Bushu, supra.

If after the hearing is conducted the court finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records, the court may order such records to be sealed.  By law, basic identification information will not be sealed.  CRS 24-72-308(1)(c)

The statute indicates the general assembly's intent to preserve the complete criminal justice record, but in a form that protects the individual named from any harmful effects.  Physical destruction of records not generally allowed.  By fashioning the remedy of sealing records, the general assembly did not intend that the physical destruction of the records also be allowed in most situations.  People v. Wright, 43 Colo. App. 30, 598 P.2d 157 (1979).

Counsel prepares and e-Files an affidavit of the petitioner setting forth with specificity the privacy interest harm suffered.  This gives notice to the Court and to the DA Office of harm prior to the judge taking the bench.  Exhibits may be attached to the affidavit, such as employment rejection letters and the like.  Background check documents (Colorado state courts litigation history, CBI history, national criminal records search and if PIN is available, Colorado driving record) are available in hardcopy at hearing for introduction into evidence if relevant or needed.

FIND A LAWYER ANYWHERE Criminal Defense Homepage Overview Page Overview Page Top

        Upon the entry of an order to seal the records, the petitioner and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such records exist with respect to such person. An individual may deny his past criminal record. CRS 24-72-308 clearly allows an individual to deny past criminal involvement if the criminal record has been sealed pursuant to the statute. D.W.M., supra, Bushu, supra.

        POTENTIAL IMPORTANCE TO PERSON'S FUTURE
        Employers, educational institutions, state and local government agencies, officials, and employees may not, in any application or interview or in any other way, require an applicant to disclose any information contained in sealed records. An applicant need not, in answer to any question concerning arrest and criminal records information that has been sealed, include a reference to or information concerning such sealed information and may state that no such action has ever occurred. Such an application may not be denied solely because of the applicant's refusal to disclose arrest and criminal records information that has been sealed.  CRS 24-72-308(1)(f)(I)

Exception to the exception - DUI - DEAC - DWAI  charge - minor under age 21 and BAC below 0.05
42-4-1715. Convictions, judgments, and charges recorded - public inspection. 
         (1)(a) Every judge of a court not of record and every clerk of a court of record shall keep a full record of every case in which a person is charged with any violation of this article or any other law regulating the operation of vehicles on highways.
            (b)   (I) Upon application by a person, the court shall expunge all records concerning a conviction of the person for driving any vehicle in this state with an alcohol level of at least 0.02 but not more than 0.05 grams of alcohol per hundred milliliters of blood or at least 0.02 but not more than 0.05 grams of alcohol per two hundred ten liters of breath while under twenty-one years of age pursuant to section 42-4-1301 (2) (a.5) if:
                            (A) Such person presents a request for expungement to the court and provides all information required by the court to process such request;
                            (B) Such person is over twenty-one years of age and the court action regarding the offense has been concluded;
                            (C) The person has not been convicted for any other offense under section 42-4-1301 that was committed while such person was under twenty-one years of age; and
                            (D) Such person pays the fine and surcharge for such conviction and completes any other requirements of the court with regard to such conviction, including, but not limited to, any order to pay restitution to any party.
                    (II) Upon receiving a request for expungement, the court may delay consideration of such request until sufficient time has elapsed to ensure that the person is not convicted for any additional offense under section 42-4-1301 committed while the person was under twenty-one years of age.
        (2) Within ten days after the entry of a judgment, conviction, or forfeiture of bail of a person upon a charge of violating any provision of this article or other law regulating the operation of vehicles on highways, the judge or clerk of the court in which the entry of a judgment was made or the conviction was had or bail was forfeited shall prepare and immediately forward to the department an abstract of the record of said court covering every case in which said person had a judgment entered against him or her, was so convicted, or forfeited bail, which abstract must be certified by the person so required to prepare the same to be true and correct.
        (3) Said abstract must be made upon a form furnished by the department and shall include the name, address, and driver's license number of the party charged, the registration number of the vehicle involved, the nature of the offense, the date of hearing, the plea, the judgment or whether bail forfeited, and the amount of the fine or forfeiture.
        (4)(a) Every court of record shall also forward a like report to the department:
                    (I) Upon the conviction of any person of vehicular homicide or any other felony in the commission of which a vehicle was used; and
                    (II) Upon the dismissal of a charge for a violation of section 42-4-1301 (1) or (2) or if the original charge was for a violation of section 42-4-1301 (1) or (2) and the conviction was for a non-alcohol- or non-drug-related traffic offense.
            (b) Every juvenile court shall forward a like report to the department upon the adjudication of delinquency of any juvenile based upon conduct which would establish vehicular homicide if committed by an adult.
        (5) The department shall keep all abstracts received under this section, as well as a record of penalty assessments received, at the main office, and the same shall be public records and subject to the provisions of section 42-1-206.

        Prosecutors may subsequently petition the court to unseal the records. Inspection of the records included in an order sealing criminal records may thereafter be permitted by the court only upon petition by the person who is the subject of such records or by the prosecuting attorney and only for those purposes named in such petition.  CRS 24-72-308(1)(e)

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Criminal Defense Homepage Overview Page Overview Page Top

In a case where:
        1. The sealing statute was amended - restricting rights to seal, and
        2. Petitioner's records could have sealed records under the former statute
        3.  Under the amended statute, Petitioner did not meet the criteria to seal records
        4.  Petitioner failed to request sealing until after amendment
        5. Petitioner did not qualify for sealing under the new statute - request denied

        The court ruled the opportunity to petition and to have the balancing test applied in a hearing under this section is not a vested or a substantive right, application of the amended statute to the petitioner did not violate the constitutional prohibition against retrospective legislation (law not ex post facto), and the petition was denied under the new statute. People v. D.K.B., 843 P.2d 1326 (Colo. 1993); E.J.R. v. District Court, County of Boulder, 892 P.2d 222 (Colo. 1995).

        The sealing statute has been amended multiple times, each becoming more restrictive and limiting the circumstances under which criminal justice agency records can be sealed. The above cases demonstrate - seal now while you can. If the law is changed later and you haven't sealed - tough luck - should have acted sooner.

        If you enter into a deferred sentence agreement, sentencing is delayed for the period of time agreed. Upon your satisfactory completion of all conditions of the deferred sentence, your plea of guilt will be withdrawn and the deferred charge(s) will be dismissed.

    1. All Charges Deferred and/or Dismissed.
        a. If you entered a plea of guilt or nolo contendere - no contest (deferred) to the only charge or all charges, the entire case will be dismissed. This will be done automatically by the Court without further action on your part so long as you satisfactorily comply with conditions set forth in your deferred sentence agreement. You may be able seal records of the criminal case.
        b. Review your deferred sentence agreement. Paragraph no. 7 of the