 | |
|
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
JUSTICE RECORDS
COLORADO SPRINGS CRIMINAL
DEFENSE ATTORNEY
|
WELCOME
I appreciate your interest
perhaps I will become your attorney |
 |
Sealing Criminal Records - Colorado Springs. felony offense, misdemeanor offense, petty offense, traffic offense - criminal allegations, conviction, probation, dismissal, deferred sentencing or deferred sentence with subsequent 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 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:
-
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.
-
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.
-
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.
|
|
MINIMUM
THRESHOLD TO SEAL |
|
|
please read before calling the attorney |
|
|
if the court imposed
sentence, the case is not eligible for sealing |
|
|
|
| |
|
1. After investigation, the matter was dropped
without filing criminal charges.
|
|
OR
|
| |
|
2.
After prosecution was initiated, all charges in the criminal case were
dismissed. This includes but not limited to evidentiary suppression,
nolle, nolle prosequi, insufficient evidence, dismissal, straight
dismissal, flat dismissal, or successful completion of a
deferred
sentence and subsequent dismissal.
|
|
AND
|
|
a. You did not waive your rights to petition to seal
in plea negotiation.
El
Paso County DA Office has a sealing waiver pre-printed into misdemeanor
deferred
sentence agreements. Many felony
deferred
sentence agreements are custom
drafted and contain a similar clause. If such a clause exists, the right to seal
is gone unless perhaps grounds exist for a
collateral
attack . Place to begin -
carefully read your
deferred
sentence agreement looking for the word waive, waives,
waived and also
the numbers
CRS
24-72-308. |
|
AND
|
|
b. The dismissal or failure to charge was not the
result of a plea agreement in separate case.
Note: 2004 amendment opens a window if you have been a good lad or
lass. Now the
uncharged offense investigation records or flat dismissal would be eligible for
sealing
15 years after the date of final disposition of all criminal proceedings if no
new criminal charges have been brought during the 15 years.
Word to the wise. DUI, DEAC & DWAI
as well as driving under restraint are classified as misdemeanors - criminal
charges -
as well as some other traffic matters. Exercise care if relevant.
|
|
Note: 2008 pending
SECOND CHANCE LAW
reduces the 15 year window to 10 years. |
|
|
OR
|
| |
|
3. After prosecution was initiated, a judge or jury
entered a verdict of not guilty on all charges
|
| |
2008 LAW
CRS 24-72-308.5
|
DRUG CONVICTION SECOND CHANCE LAW
link contained in destination page
to law verbatim + synopsis
drug conviction sealing
eligibility 7/1/08 |
|
Colorado law effective
7/1/08 permits some drug convictions to be eligible
for sealing 10+ years after final disposition.
persons convicted of some drug offenses may be eligible to
avoid harm for an old act of poor judgment - statute is
quite restrictive
|
|
For persons with
non-drug related convictions who were hoping relief
would come in the form of a second chance law, this
is not it.
not yet - not today |
|
|
|
| |
|
|
|
NOTE |
To be
eligible to seal, a case must fall within the above criteria |
|
If you
entered a guilty plea or were found guilty at trial and
the court imposed sentence on any charge, you are not
eligible to seal criminal justice records. If you were sentenced to
probation or received a straight jail sentence on any charge in the case,
no charge in the case is eligible for sealing. If this exists,
please don't call hoping you will hear something different. It never
hurts to obtain a second opinion from a different attorney. |
|
Deferred
sentence is another
matter - refer to above information and the link
|
|
Collateral attack
may
be possible - refer to the link
|
|
If uncertain
of final disposition, refer
to Records
& Non-Client Sealing Eligibility Assessment - Including Self Help |
|
SEX OFFENDER. Conviction of an
offense for which the factual basis was unlawful sexual behavior as
defined in
CRS 16-22-102(9) is not
eligible for sealing. Refer to
CRS
24-72-308(3)(c). This attorney
interprets the statute to prohibit sealing of any amended charge to
which plea is entered, including records of the original sex offender
charge. Given that a petition to seal would be dismissed by the
Court prior to setting a hearing, I would decline such a request.
You may consult other counsel. |
|
If the entire case was either not
filed, dismissed or not guilty verdict entered as to all counts, feel
free to call or email. |
|
|
|
FILING - NOTICE
e-Filing
availability and court mandatory requirements |
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 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. |
|
|
|
SEALING
ORDER - NOTICE |
|
method of
serving the final sealing order has significant impact upon cost and upon
probability of compliance - actual sealing
please take the time to review the various options of final order service |
|
|
|
|
|
|
|
|
1. A copy of the order is to be
provided to the custodian of record of each agency named in the petition
CRS 24-72-308(1)(b)(II). The Clerk of Court in the sealing
civil case receives notice via the sealing order itself. If records of
a different court are being sealed, notice would have to be given to the
other Court Clerk. e.g. municipal court |
|
2.
Records Custodian Failure to Seal - Misdemeanor.
Any person who willfully and knowingly fails to seal is guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a fine of not
more than one hundred dollars, or by imprisonment in the county jail for not
more than ninety days, or by both such fine and imprisonment.
CRS 24-72-309 |
|
|
|
3. Four options are exist regarding notice and service of the sealing order
upon the agencies with criminal justice records.
Usually 8 - 14 agencies are named in a petition to
seal. |
|
FORM OF SEALING ORDER WHICH PROVIDES NOTICE
ORDER - COPY CERTIFIED BY THE COURT OR PLAIN PHOTOCOPY
|
|
4.
Format of the sealing order which will be served upon the agencies with criminal justice records
will take one of three forms.
a. Electronic .pdf file of final sealing order.
recommended for
Electronic File and Serve
The court serves Petitioner's counsel electronically with the sealing order;
generally the date of hearing or within 2 days thereafter. With the
final notice and certificate of e-Service, the court order .pdf file can be
served electronically upon agencies via email or fax. Although not
certified, the electronic order should be accepted based upon the electronic
court seal and the fact it is being served via LexisNexis, the court's
e-File and e-Service agency.
Upside. e-Service upon agencies is immediate upon e-Filing - no
lag time for mail delivery or personal process service.
Upside e-Service via Email. Lack of court copy expense, court
certification expense and USPS postage expense results in a significant net
cost savings over personal service or service by U.S. Mail. LexisNexis
imposes a minimal e-Service fee per e-Filing for email e-Service regardless
of the number or size of the documents served or number of agencies served.
Downside - e-Service via Fax. Lack of court copy expense, court
certification expense and USPS postage expense results in a significant net
cost savings over personal service or service by U.S. Mail, however fax
e-Service is more costly than email e-Service. LexisNexis imposes an
additional fax e-Service fee per e-Filing, plus charges per page per agency.
b. Certified copy of final sealing order.
recommended for personal service or service via U.S. Mail
Upside - Avoidance of Additional Fees and Costs. An agency with
records to seal is much more likely to comply with the sealing order if a
certified copy has been received. Compliance and agency sealing will avoid
the necessity of unsealing the court file to procure subsequent certified
copies.
Downside - Additional Expense. court expense.
$0.75 per page copy expense plus $15 per document court certification fee.
c. Regular copy of final sealing order - not certified.
not
recommended
Upside - Expense Reduction & Safety Net.
For clients desiring to reduce expenses, photocopying by the attorney is less
costly than the above court copy expense and court
certification fee. With the safety net of
subsequent records check referenced in
attorney
recommendations below, client will determine whether each agency
accepted the regular photocopy and actually sealed records.
Service Method Downside - Potential Additional Fees and Costs. If
an agency refuses to seal records based upon an uncertified photocopy of the
sealing order, billable attorney time will be expended in the dispute and the court file will have been sealed.
Motion and order to unseal the court file will be required to procure a
certified copy. Additional fees and
costs necessitated by agency dispute, opening the sealed court file, court certification and
alternate service of process would be the billable. This constitutes
advisement of the risks. The client will make the election regarding
plain photocopy or copies certified by the court. Common sense
mandates certified copy. don't be penny wise and pound foolish
| ****************************** |
****************************** |
****************************** |
|
| |
|
Comment re Option
Explanations Options explanations may seem lengthy. It is my
policy to inform clients of all options which impact the client's rights or
finances in order to permit the client to make intelligent, informed
decisions. Method of serving the final sealing order has significant
impact upon cost and upon probability of compliance - actual sealing by
criminal justice agencies which were served with the final sealing order.
| ****************************** |
****************************** |
****************************** |
|
| |
|
5. Attorney Recommendations
a.
Local criminal justice agencies and the CBI have accepted electronic files of the final sealing order (court
seal but not certified by the Clerk of Court) via LexisNexis
e-File & e-Serve since the documents are originating from the court.
e-Filing & e-Service option 1
is the fastest, least expensive & most viable method of serving the final
sealing order and is therefore recommended by counsel. As indicated above,
it is a new process and may not be available outside El
Paso County.
b. For
clients uncomfortable with electronic process and desire for U.S. Mail and
mid-range expense, use of
regular U.S. Mail option 2 above is the only other approach if the
final sealing order is not personally served on each agency. With
the safety net of subsequent records check in ¶5 §c immediately below,
regular U.S. Mail service of the final sealing order is a viable option to
save costs and total client expenditure and is most commonly used in
sealing cases.
c. It is this attorney's belief that if a certified copy of the order to seal is
personally served upon the custodian of records with an affidavit of
personal service of process being filed with the court, it is much more likely the
records will in fact be sealed. The person served is subject to
misdemeanor sanctions if the records are not sealed.
process service option 3
provides the most security for actual sealing, but is the most expensive method
of service. If
sufficient reason exists to petition to seal in the first place, client
may determine there is
sufficient reason to use every means possible to actually have the records
sealed by the various agencies.
d. Notice of the final sealing order via certified U.S. Mail (certified
mail option 4) is not available through this attorney - refer to
link for reasons.
e.
Immediately prior to closing file, counsel conducts an on-line check of
Colorado State Courts litigation history and CBI history to ascertain
records are sealed and unavailable. Counsel advises each client to
attempt to procure records from each other agency 30 days after entry of
the sealing order to verify that records are in fact not accessible.
Please refer to the below links for information regarding searching the
FBI "rap sheet" and client records requests to law enforcement agencies.
|
|
| |
|
|
|
| |
|
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 A 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)
|
|
|
|
| |
|
By law, basic
identification information will not be sealed.
CRS
24-72-308(1)(c) |
|
"Basic identification information"
is limited to the name, place and date of birth, last-known address,
social security number, occupation and address of employment, physical
description, photograph, handwritten signature, sex, fingerprints, and
any known aliases of any person.
CRS
24-72-302(2).
|
|
|
|
Exception to sealing re
law enforcement agency inquiry. |
|
This section shall not apply to
arrest and criminal justice information or criminal justice records in
the possession and custody of a criminal justice agency when inquiry
concerning the arrest and criminal justice information or criminal
justice records is made by another criminal justice agency.
CRS
24-72-308(3)(d) |
|
Put another way, if a person is
subsequently investigated for another crime, law enforcement officers
will be able to view records of the sealed matter. Use by
prosecutors would only be permitted if prosecutors petitioned to
unseal records & the petition was granted by the court.
CRS
24-72-308(1)(e) |
|
|
| |
|
Records which are exempt from the statute and may not
be sealed.
CRS
24-72-308(3)
1. Any class 1 or class 2 misdemeanor traffic offense
2. Any class A or class B traffic infraction; or
3. DUI, DEAC or DWAI
4. Conviction records for unlawful sexual behavior
as defined in CRS
18-3-412.5(1)
- registered sex offenders
5. All records when inquiry is made by another criminal
justice agency
|
|
Additionally, the DMV is required to keep a separate file of
all abstracts of court records regarding dismissals and lesser alcohol
offense or non-alcohol offense convictions where the original charges
were alcohol or drug related traffic charges, i.e.: DUI, DEAC or DWAI. CRS
42-2-121(2)(b) These separate records are available only to
criminal justice agencies. |
|
| |
|
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 c | |
