In August 2019, Colorado expanded eligibility for file sealing. The new laws apply to all cases, including cases from before 2019.
“Sealing” a record prevents any member of the public from seeing the case record. The record is not destroyed, but for all public purposes, it looks like the case never existed. It will not show up in a public background check, and the subject of the record (i.e. the defendant) can withhold information about the case and affirmatively say it never happened.
Criminal justice agencies can still access the records, as can government agencies like the Department of Homeland Security and the FBI. But those agencies have to respond to any public inquiry by saying no record exists. Any internet postings containing information about a sealed case can still be accessed by the public. Negative internet postings are independent from any court proceedings.
The most difficult aspects of sealing a case are typically (1) making sure the proper motion is filed and procedures are followed; and (2) ensuring that agencies comply with a court’s order to seal a case. It helps to have experienced attorneys handle this process, to ensure that nothing slips through the cracks. The attorneys at Berg Hill Greenleaf Ruscitti have experience with this process and have developed efficient procedures to make sure the process goes smoothly.
Victim’s Rights Act
It makes sense to begin with the Victim’s Rights Act (VRA), because this statute impacts which records can be sealed and the necessary procedures.
Certain crimes fall under the VRA; the most common are murder, assault, menacing, robbery, sex offenses, domestic violence crimes, stalking, and violation of a protection order (this is not an exhaustive list).
If a record contains VRA charges, the victim is entitled to be notified before a record is sealed. Many VRA charges cannot be sealed. For others, the victim(s) can request a hearing to voice their objection. These exceptions and procedures are explained further below.
No Charges/Case Filed
When a prosecutor declines to bring charges, there are still public records, including police reports, that can be sealed. When someone files a petition to seal such records, the court will make sure it has enough information, then order a hearing. That hearing will be vacated if there is no objection from the prosecutor or arresting agency.
Cases Without a Conviction
With certain narrow exceptions, a defendant is eligible to seal his or her record immediately when:
- The case is completely dismissed,
- The defendant is acquitted of all counts,
- The defendant completes a diversion agreement; or
- The defendant completes a deferred judgment and sentence, so long as it was not for a felony sex offense.
These cases can be sealed via a simplified procedure. The court is required to seal the record in any of the above 4 circumstances, but many courts overlook this requirement. In that case, the defendant can file a written motion to seal.
All that is necessary under the simplified process is evidence of the dismissal or acquittal. If the case involved a VRA charge, the court must allow the prosecutor up to 42 days to notify the named victim of the sealing. The victim or the prosecutor cannot object to sealing or to request a hearing on the motion. This procedure only allows them to be notified.
There are some exceptions to sealing records, even when there is no conviction. If a case is only dismissed as part of a plea bargain in which the defendant is convicted in another case, is not eligible for sealing until the conviction is eligible. Finally, cases where the only charges were low-level traffic charges are not eligible for sealing, even if all charges are dismissed.
Sealing a Conviction Record
Prior to the 2019 bill, a conviction would remain on the defendant’s record for life. Now, convictions from petty offenses up to class 4 felonies and class 2 drug felonies can be sealed. There are several exceptions, outlined below. Sealing does not vacate a conviction, so the conviction will continue to have legal effect (for example, a felony conviction will still prohibit firearm possession even after it is sealed).
A conviction record is sealable after a certain amount of time has passed since the case closed, or when the court’s jurisdiction ended (whichever is later). This often, but not always, means the end of probation or parole.
The waiting period is:
- 1 year for a petty offense or a drug petty offense
- 2 years for a class 2 or 3 misdemeanor; or any drug misdemeanor
- 3 years for a class 4, 5, or 6 felony; a class 3 or 4 drug felony; or a class 1 misdemeanor
- 5 years for any other, non-specified offense
The defendant must also pay all restitution, fines, court costs, or other fees in the case, and submit a verified criminal history, to show he or she has not been convicted of any new offenses.
If the conviction is for a VRA offense, the victim or prosecutor can object to sealing. If they do object, the court will hold a hearing and weigh a number of factors, including criminal history, the number of convictions and dates of convictions sought to be sealed; and the need for the government agencies to retain the records. If the court finds that the defendant’s need for privacy outweighs the need for public access, the court will grant the motion to seal.
If the court denies the motion to seal, 12 months must pass before another motion in that case can be filed.
A sealed conviction record will be unsealed (i.e. publicly available again) if the subject of the record is convicted of a new offense.
Exceptions
Any felony conviction that falls under the VRA cannot be sealed. Other common exceptions include:
- Crimes of violence
- Sex offenses
- Domestic violence
- DUI convictions
- Child abuse
- A crime against a pregnant victim
- Identity theft
- Convictions that involve aggravated or extraordinary risk sentencing
Any misdemeanor conviction that would be otherwise ineligible for sealing can still be sealed if the prosecutor consents, or if the court finds:
- There is a significant and substantial need for sealing;
- Enough time has passed to eliminate the risk to public safety; and
- The record is no longer necessary to protect or inform the public
Sealing Process
An eligible court case can be sealed by filing a motion with the court and notifying the prosecutor. Depending on the level of offense and whether it falls under the VRA, the court may need to give the prosecutor time to notify the victim or set the case for a hearing. The process usually takes 6 to 8 weeks, but it can take longer depending on the circumstances in the case.
The order to seal is not the end of the process. If the court orders a case sealed, the defendant is responsible for sending the sealing order to all agencies that have records of the case, to ensure they comply with the sealing order. Often, this is the most difficult part of the process, and many agencies are resistant to providing any type of confirmation.
The attorneys at Berg Hill Greenleaf Ruscitti have proprietary procedures in place to ensure that every agency involved complies with the court’s order and provides confirmation that they have done so.
Conclusion
The new sealing laws in Colorado make countless cases eligible for sealing that were previously ineligible. It is important to discuss an individual case with an attorney, to review the exceptions, requirements, and procedures involved in sealing that particular case. Sealing offers the opportunity to move on from a conviction and move forward with a clean record.
The attorneys at Berg Hill Greenleaf Ruscitti have experience in sealing cases statewide, from low-level offenses to serious felony charges. Our attorneys can efficiently determine whether a case is eligible for sealing, file the proper motion, and follow up with every agency. Our goal is for our clients to be able to move on from mistakes that have been holding them back, and to move forward with a clean slate.
Author: Charles J. Testa
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