Simplified Sealing of Criminal Records
Colorado requires criminal justice agencies to maintain records of official action which remain open to public inspection, only with minor exception. This could have lifelong consequences for the person who has a criminal record even without a conviction, whether in obtaining employment, housing, or a loan, for example. However, Colorado provides for a simplified and inexpensive procedure for the sealing of certain criminal records involving an offense for which the person was not charged, which was completely dismissed, or of which the person was acquitted, codified under C.R.S. § 24-72-702.5.
Under the simplified process, for a filing fee of $65, an informal motion may be made orally at the time of the dismissal or acquittal of the defendant or at any time thereafter by a written motion filed in the criminal case with written notice to the prosecuting attorney. If the court finds the person is eligible, the court will promptly process the request to seal within the criminal case without the filing of a costly independent civil action and without any further evidence except for evidence of the dismissal or acquittal.
However, if the sealing motion involves a case under Colorado’s Victims Rights Act (“VRA”), such as a crime of domestic violence, notice of a hearing is required to allow the prosecutor reasonable opportunity to notify the victim under the VRA so they may attend the hearing and be heard. At the hearing the court considers the harm to the person’s privacy or the danger of unwarranted adverse consequences and must determine whether such harm/danger outweighs the public interest in retaining the records.
If the court enters an order sealing the records under the simplified process, the court provides a copy of the order to the Colorado Bureau of Investigation (“CBI”), and defendant pays to CBI any costs related to the sealing of the records in CBI’s custody (currently $28). The court also provides a copy of the order to each custodian who may have custody of the records and directs that the records be sealed immediately, except for basic identifying information. While the court, law enforcement and criminal justice agencies will always have access to the file (the files are not destroyed), if inquiries are made by anyone other than a criminal justice agency, such as a prospective employer, the person and criminal justice agencies may properly respond that “no such records exist as to such person.”
Before the simplified procedure, the sealing process required the filing of a separate civil action by petitioning the district court where the records exist. The filing fee alone was hundreds of dollars and required the person to serve the petition with notice by certified mail to each entity who may have records related to the dismissed action. It became even more expensive and time consuming if the court ordered a hearing to determine if the person’s privacy interests outweighed the public interest. Depending on the nature of the underlying offense, notwithstanding the passage of time, this could be a difficult burden to carry.
In any event, whether under the simplified procedure or the separate civil action to seal, under Section 24-72-702, C.R.S. the Colorado state board of law examiners has a right to inquire into the moral and ethical qualifications of an applicant, and the applicant has no right to privacy or privilege that justifies his or her refusal to answer to any question concerning arrest and criminal records information that has come to the attention of the bar committee through other means. Moreover, the department of education may require a licensed educator or an applicant for an educator’s license who files a petition to seal a criminal record to notify the department of education of the pending petition to seal. The department of education has the right to inquire into the facts of the criminal offense for which the petition to seal is pending. The educator or applicant has no right to privacy or privilege that justifies his or her refusal to answer any questions of the department of education concerning the arrest and criminal records information contained in the pending petition to seal.
Because of the lifelong impact of criminal justice records, the limited eligibility to seal, and the nuances and ongoing changes in the law (a bill was introduced in January concerning consequences of criminal records with respect to housing), if you are ever accused or charged with a crime, no matter how minor it may seem, you should contact one of our experienced attorneys who will negotiate with prosecutors to seek an eventual dismissal of your case. Depending on the offense charged, this may allow you to take advantage of Colorado’s expedited process to seal criminal records. Call us if you have an existing or prior case that you wish to have sealed.
By: Jonathan Leinheardt