Sealing Criminal History Records for Convictions under CRS §§ 24-72-701 et seq., 1120 COBJ, Vol. 49, No. 10 Pg. 32

• Author: BY GORDON P. GALLAGHER
• Position: Vol. 49, 10 [Page 32]

49 Colo.Law. 32

Sealing Criminal History Records for Convictions under CRS §§ 24-72-701 et seq.

Vol. 49, No. 10 [Page 32]

Colorado Lawyer

November, 2020

CRIMINAL LAW

BY GORDON P. GALLAGHER

This article explores the significant changes made in 2019 to Colorado's statutes for sealing criminal history records for convictions and discusses how to address sealing from a practitioner's perspective.

The 2019 legislative session resulted in the most significant changes to Colorado's various statutes addressing the sealing of criminal history records in at least a decade—perhaps since 1977. The new laws, which greatly expand the ability to seal criminal history records, apply primarily to convictions. They also modify the sealing process and alter some effects of a sealed record. This article discusses these legislative changes and their practical implications for practitioners and their clients.¹

Evolution of the 2019 Legislative Changes

The Criminal Justice Act of 1977 allowed courts to seal all criminal records, including convictions.² However, in 1988 the General Assembly reversed course and excluded individuals convicted of offenses from eligibility.³ In 2008 the tide began to flow the other way, starting with the ability to seal some drug convictions.⁴ The General Assembly added the ability to seal offenses committed by human trafficking victims in 2012.⁵ Petty and municipal offenses were approvedforsealingin2013.⁶ Crimes related to posting intimate photographs on the internet were added in 2014.⁷ In 2016, Colorado instituted a simplified sealing procedure that allowed for more rapid and less expensive sealing of many criminal records when charges did not result in a conviction.⁸ While significant, all of those changes pale in comparison to the scope of the 2019 amendments and additions, which vastly expand the ability to seal criminal convictions at the misdemeanor and low- to mid-felony levels. Highlights of the new provisions include:

■ the ability to seal class 2 and 3 misdemeanors and all drug misdemeanors (two years after final disposition).⁹

■ the ability to seal class 4, 5, and 6 felonies, class 1 misdemeanors, and class 3 and 4 drug felonies (three years after final disposition).¹⁰

■ the ability to seal all other eligible offenses (five years after final disposition).¹¹

■ the continued exclusion of convictions for misdemeanor traffic offenses, traffic infractions, DUI/ DWAI, sex offenses, child abuse, domestic violence, cases with extremely aggravated circumstances, Victim Right's Act matters, felony cruelty to animals, and certain other enumerated matters.¹²

The statutory changes are retroactive, applying to "all eligible cases."¹³ Aside from the above exclusions, the law creates a path for sealing otherwise ineligible misdemeanors.¹⁴ The law allows sealing of deferred judgments for misdemeanor sex offenses but still excludes a deferred felony sex offense.¹⁵

Both prosecutors and defense counsel should become very familiar with the 2019 statutory changes. Beyond the criminal sentence, those with convictions face substantial impacts from having a criminal record. For example, criminal conviction records, searchable during the job application process, are frequently a determining factor in employment decisions.¹⁶ Defense counsel should be mindful of the downstream ability to seal a criminal record when negotiating a disposition.

Because die statutory changes now make the records from many resolved cases sealable, counsel should consider their legal and moral responsibility to notify former clients, many of whom may have been previously advised of the legal inability to seal their records.¹⁷ Generations of prior defendants with criminal convictions are now able to seal those records but may not know it.

Sealing Criminal Convictions

The centerpiece of die 2019 legislation is die novel ability to seal misdemeanor and felony criminal convictions.18 Although the legislation identifies numerous subcategories of crimes that remain ineligible for sealing, the door is now open to seal a significant percentage of previously ineligible convictions. Before 2019, die general rule was that criminal convictions could not be sealed, other than those specifically enumerated by statute.¹⁹ The 2019 changes flip this analysis to a presumption of eligibility to seal, with carve-outs for ineligible categories.

The 2019 legislation sets out a graduated plan allowing for more rapid sealing of lesser offenses with fewer requirements. As the offense level ramps up from less to more serious, so too do the requirements or hurdles to sealing. The lowest level of convictions eligible for sealing, petty offenses and drug petty offenses, can now be sealed one year after final disposition of die case²⁰ (for practical purposes, when the court's jurisdiction ends; e.g., when probation terminates). For eligible petty offenses, there is no mechanism for a court hearing and sealing is mandatory, as the statute provides "the court shall order that the records be sealed... ."²¹

SEALING REQUIREMENTS BY OFFENSE LEVEL

OFFENSE	TIME FROM FINAL DISPOSITION	NOTICE TO DA REQUIRED	HEARING REQUIRED	STANDARD FOR COURT
Petty offense/ drug petty offense	1 year	Yes	No	Shall
Misdemeanors 2–3, drug misdemeanors	2 years	Yes	If DA objects or if the charge is a VRA offense	Shall, if no objection or not VRA offense; otherwise, may
Felonies 4–6, drug felonies 3–4, misdemeanor 1	3 years	Yes	If no DA objection and not a VRA offense, hearing is discretionary; otherwise, hearing is mandatory	May
All other eligible offenses	5 years	Yes	Mandatory	May
Otherwise ineligible misdemeanors; unclear if there are any carve-outs	No longer a threat	DA consent “or” all other requirements must be met; unclear if DA must be notified to proceed with alternative requirements	Unclear; not set forth in the statute	Court must find that the need to seal is “significant and substantial” and public disclosure is no longer necessary to protect or inform the public; unclear whether shall or may, but probably may (discretionary)

By contrast, to seal offenses more serious than a class 4 felony, notice to the district attorney (DA) is mandated, a hearing is required, and sealing is discretionary as indicated by the "may" language in the statute.²² Offenses from low-level misdemeanors to mid-level felonies fall in between those two poles as indicated in the accompanying chart. Pursuant to CRS § 24-72-706(1)(c), all sealings require a custodian of records list and a verified criminal history. Victim Rights Act (VRA) offenses, as enumerated in CRS § 24-4.1-302(1), require a hearing under CRS § 24-72-706(1)(f)(II). The Basic Process The motion to seal is filed in the criminal case in which the conviction occurred²³ —this is juxtaposed with earlier versions of Colorado sealing statutes in which a new civil case had to be opened to seal a criminal case. That step has been removed except where no case was originally filed in state court.²⁴ Notice to the prosecution is required.²⁵ While the notice requirement is essentially irrelevant for practitioners—electronic filing of a motion to seal will automatically be routed to the prosecution—pro se defendants filing on paper at the courthouse will have to ensure compliance. All motions require a list of custodians.²⁶ While this list would obviously include the arresting agency, the prosecution, and the court, practitioners should be aware of less obvious but equally important custodians. Additional custodians could include: ■ an alternate detention facility, if a defendant was arrested somewhere other than die county of origin for die case and either bonded there or was extradited; ■ public and private probation offices, if probation was transferred at some point during die probation period and multiple probation offices must be notified; and ■ pretrial supervision offices. It is crucial to ensure that all custodians are notified because those not listed and served are under no obligation to follow a sealing order. Practitioners would likely find a client under standably irate were a background check to reveal the existence of a sealed conviction due to a failure to list and serve all custodians....