Sealing Criminal Records in Colorado
| Publication year | 1992 |
| Pages | 247 |
| Citation | Vol. 21 No. 2 Pg. 247 |
1992, February, Pg. 247. Sealing Criminal Records in Colorado
In the 1972 case of Davidson v. Dill,(fn1) the Colorado Supreme Court recognized that arrest records fall directly under the protection of a citizen's right to privacy. The court based its holding on the fact that public disclosure of arrest records can cause great economic and personal harm to an individual. In its decision, the court ruled that justice requires
the existence of a right of privacy in the fingerprints and photographs of an accused who has been acquitted, to be at least placed in the balance, against the claim of the state for a need for their retention.(fn2)
This article discusses a 1977 statute enacted in response to Davidson. Although this statute subsequently was repealed and re-enacted, recent Colorado case law again made it applicable to persons arrested and convicted before its repeal. Thus, criminal law practitioners should be aware of its provisions.
The statutory rights created in the Criminal Justice Records Act, first promulgated in 1977, evolved directly from the rule announced in Davidson.(fn3) In the statement of legislative intent, the Colorado General Assembly declared that
the maintenance, access and dissemination, completeness, accuracy, and sealing of criminal justice records are matters of statewide concern....(fn4)
On April 20, 1988, the Colorado legislature repealed and re-enacted the statute governing the sealing of criminal records.(fn5) This re-enactment significantly changed the rights of defendants in regard to their criminal records.(fn6) The 1977 statute had provided for the limited release and sealing of criminal records even where a criminal action resulted in a conviction.(fn7) However, the re-enacted statute provides only for the sealing of records where (1) the defendant was not charged, (2) the case was completely dismissed or (3) the defendant was acquitted.(fn8) Further, there is no provision regarding the right of an individual to limit access to his or her arrest and criminal record.
The Colorado Constitution prohibits the retrospective application of any law that attempts to create, eliminate or modify a substantive right.(fn9) Both the U.S. and Colorado Constitutions also prohibit an ex post facto application of a law that changes the punishment or inflicts a greater punishment than the law annexed to the crime when committed.(fn10) Thus, the Colorado Court of Appeals recently held that the 1977 statute applies to all persons convicted prior to the repeal and re-enactment of the statute.(fn11)
A review of the case law and the statute in question convinced the Court of Appeals in D.K.B. v. People that the 1977 law was enacted with the individual's right of privacy in mind.(fn12) The court recognized that the 1977 law essentially incorporates the balancing test applied in Davidson, which requires the district court to weight the individual's right of privacy against the public interest in retaining access to those records. Where the individual's interest outweighs the public interest, the district court must order the record sealed. The D.K.B. court held that the privacy interest is a substantive right which vests at the time of conviction. Accordingly, the significant modifications of the 1988 law can be applied prospectively only.(fn13)
Under an ex post facto analysis, the court applies a two-part test. First, the criminal law must apply to events occurring before its enactment---that is, it must be retrospective. Second, it must disadvantage the offender affected by it.(fn14) In the 1991 case of In re R.B., the Court of Appeals found that the 1988 law...
To continue reading
Request your trial