The Collateral Consequences in Colorado of a Juvenile Criminal Record

The Colorado juvenile Justice System is complex. There is much “cross over” with the adult criminal justice system. The system was created to treat juveniles “differently” than adults with an emphasis on rehabilitation and NOT lifetime burdens that may result from plea agreements.

Criminal justice records in Colorado are generally available to the public underthe Colorado Open Records Act. However, the Colorado legislature limits the availability of juvenile records. Despite this limitation, the Children’s Code Records and Information Act permits, and in some circumstances requires, certain agencies and schools to share information regarding juvenile interactions with law enforcement and the courts.

This practice may result in collateral consequences for a juvenile with a record.

Colorado laws do not provide a list of automatic or discretionary collateral consequences of a juvenile record, so participants in the juvenile justice system may not be aware of the continuing repercussions of juvenile arrests and adjudications. Other than mandatory notification of the right to expungement at the disposition of a juvenile case, Colorado does not require that youth be informed of collateral consequences.

What that means is that your lawyer – or you – need to be aware of what those collateral consequences are!

These consequences can adversely affect a juvenile’s future in many ways, such as limiting access to education and restricting employment opportunities.

In Colorado, children are considered juveniles until their eighteenth birthday. Juvenile delinquency cases are heard in the district courts, which are the state trial courts of general jurisdiction. However, juvenile delinquency proceedings in the Second Judicial District occur in the Denver Juvenile Court. If a juvenile is found guilty in the trial court, the juvenile has been adjudicated delinquent. An adjudication is considered a conviction when past convictions are relevant in future cases or during sentencing and can be used to enhance punishments or form the basis of future adult criminal cases.

The juvenile system is designed to be flexible, quick, and aimed primarily at rehabilitation rather than punishment.

There are several different levels of juvenile offenders. These classifications affect procedure, sentencing, and eligibility for expungement.

Mandatory sentence offendersare juveniles who have two previous delinquency adjudications or have been previously adjudicated delinquent and had probation revoked for another delinquent act.

Repeat juvenile offendersare those with a previous delinquency adjudication who are then adjudicated delinquent or have probation revoked for a felony.

Habitual juvenile offendersare juveniles who have been adjudicated delinquent twice for separate felonious acts in different criminal episodes.

Violent juvenile offendershave been adjudicated delinquent for certain acts of violence.

Aggravated juvenile offendersare those juveniles adjudicated delinquent for or who have had probation revoked for certain felonious acts or certain unlawful sexual behavior.

In some circumstances, a court may transfer a juvenile case to an adult criminal proceeding.

Other cases against juveniles may be filed directly as criminal cases in district courts. Directly filed and transfer cases may result in the juvenile’s being convicted and receiving a standard adult sentence or entering Colorado’s youthful offender system.

Youthful offenders are sentenced as adults but assigned to a different correctional system designed to rehabilitate juvenile and young adult offenders.

Judges, attorneys, and other members of the juvenile justice system are not required by statute to inform juveniles of the possible collateral consequences of their juvenile records. However, judges are required to notify juveniles of the right to expungement (discussed below), which may involve a discussion of collateral consequences, at the time of adjudication.

Are photographs and fingerprints routinely collected in Colorado Juvenile Criminal Cases?

Most detained juveniles are fingerprinted at arrest, and if not, the court will order to those juveniles who have not been fingerprinted at arrest to do so when they first appear. These fingerprints are sent to the Colorado Bureau of Investigation (CBI).

Is DNA routinely collected in Colorado Juvenile Criminal Cases?

There is no statutory provision authorizing routine DNA collection from juveniles. However, if a juvenile is sentenced to the youthful offender system or is adjudicated delinquent for certain acts, DNA testing will be performed and stored with the CBI. The CBI must share this information with law enforcement agencies upon request. In the circumstances where arrest records are made public, they may include basic identifying information such as photographs and fingerprints.

Arrest and criminal records information is available to many different people and agencies, butonly in limited circumstances. The broadest access is given to school personnel, who are entitled to receive any information relating to a juvenile from the courts or any agency as long as the school personnel need the information in the course of their legal duties or responsibilities.

Probation and law enforcement records are available to the CBI for performing background checks for gun purchases, to the state department of human services, to the department of education when it must disclose information to a school about a prospective employee, and to assessment centers for children (which also have access to parole records).

Outside of educational employers, no employers enjoy special treatment in access to juvenile records. Of course, juveniles have access to their own juvenile arrest and criminal records from law enforcement.

Generally, Colorado law enforcement agencies may not disclose information from juvenile arrest and criminal records to the public. There are several exceptions, however, such as when a juvenile is tried as an adult or escapes from custody. The public has access to juvenile arrest and criminal records information for juveniles in custody who have been charged with or adjudicated delinquent for certain acts involving handguns or certain acts that would be considered felonies if committed by an adult.

Juvenile arrest and criminal records information, including basic identifying information, are automatically open to the public when a case is filed alleging an older juvenile committed an act that would be considered unlawful sexual behavior or violent if committed by an adult.

Public access is further limited in the type of juvenile record information available and the manner in which the information may be used. A member of the public must obtain a court order to access any psychological or intelligence testing results or any information about sexual abuse contained in any arrest or criminal records. Anyone requesting arrest and criminal records information must first agree in writing that the information will not be used to solicit business.

Juvenile records not publically available are to be kept confidential when shared. Anyone who wrongfully distributes juvenile records in knowing violation of the confidentiality provisions faces a fine of up to $1,000.00.

All court records for Colorado’s trial courts are currently being transferred from ICON and will soon be stored in the Juvenile Paper on Demand (jPOD), an electronic case management system.

These records include any information received by the court pertaining to a juvenile case, including probation files. Court records do not include administrative or management reports, or any information from a governmental agency or other organization that the court accesses but did not collect or maintain.

Juvenile court recordsare not available to the public without a court order.

Courts may, in their discretion, grant access to juvenile court records and probation records to anyone with a legitimate interest in the proceedings.

Juveniles may request their court records by submitting a request form to the appropriate court. The fee for obtaining a copy of a court record varies based on a variety of factors.

Anyone with a juvenile delinquency record in Colorado has the right to petition for expungement, except for those adjudicated or convicted of certain acts, aggravated juvenile offenders, and violent juvenile offenders.

Expungement allows the juvenile, agencies, and the court to say that no record exists. The court must either advise juveniles of this right at the time of adjudication or initiate expungement proceedings on its own.

A person initiates the process by filing a no-fee petition for an order of expungement in the appropriate juvenile court. The Court nay or may not hold a hearing and then, may in its discretion, expunge all relevant juvenile records held by the court or any administrative agency or official.

In certain circumstances, however, the court cannot grant an order of expungement.

While most people or agencies wishing to access expunged juvenile records must show good cause and obtain a court order, basic identification information and a list of agencies and officials involved with the juvenile remain available to the Department of Human Services, local law enforcement agencies, and district attorneys. The full record also remains available to any judge or probation department engaged in sentencing the person in a future proceeding.

If a person discovers a mistake in his court records as they appear in ICON, he can request a correction by making a written complaint to the Clerk of Court of the appropriate county or to the State Court Administrator’s Office. However, if the request is denied, there is no appeal. Since the CBI does not disseminate arrest records for juveniles, one must contact the arresting agency regarding any corrections.

Employers generally do not have access to juvenile arrest or court records. The single exception is the Colorado Department of Education. The Colorado Educator Licensing Act requires the Department of Education to provide to any public, private, or charter school that requests all information it has or can obtain about the background of a prospective or current employee.

When it performs this background investigation, the Department of Education has open access to court records, probation records, and arrest and criminal records, which include fingerprints maintained by the Colorado Bureau of Investigation. No employers, including the Department of

Education, may access an expunged juvenile record without showing good cause at a hearing and obtaining a court order.

Juvenile records affect eligibility for some types of employment involving vulnerable persons. If one has been adjudicated a juvenile delinquent for certain acts, one cannot legally work at a family childcare home, a foster care home, a childcare center, a residential childcare facility, a secure residential treatment center, or a child placement agency.

A person cannot hold a Colorado teacher’s license if within the ten years prior to application he or she has been adjudicated delinquent for any offense related to drugs or involving acts that would constitute physical assault or battery if committed by an adult. Individuals are also also ineligible for a teacher’s license if ever adjudicated delinquent for an act of unlawful felony sexual assault. Although applications for these positions do not require disclosure, both the Department of Education and the Department of Human Services have open access to juvenile records.

The Colorado legislature adopted provisions to support the exchange of information between schools and criminal justice agencies to “promote school safety [and]... assist disruptive children.” Therefore, schools have open access to the juvenile delinquency records of their students and future students.

A juvenile’s school is automatically notified when certain cases are filed in juvenile or adult court.

Once this information is communicated, whether a juvenile experiences collateral educational consequences of his interactions with law enforcement and the courts depends on the discretion of the school principal and the board of education.

A juvenile may be suspended for up to twenty-five days or expelled for up to one year for certain acts of property damage, disobedience, or “behavior on or off school property that is detrimental to the welfare or safety of other pupils or school personnel, including behavior that creates a threat of physical harm to the child or to other children.”

Expulsion is mandatory for some acts, such as carrying a knife or gun to school. The board of education may delay its decision to await the result of any judicial proceeding or it may make its own determination of the propriety of suspension or expulsion.

If a student is expelled, other schools may refuse to admit the student for up to one year. A juvenile may also be denied admission to a school where the victim of the offense or a member of the victim’s immediate family is enrolled or employed.

Students suspended for fewer than ten days receive an informal hearing before the school principal, and students suspended for ten days or more may request review by a school district official. Students to whom the board of education deny admission or expel are entitled to a hearing before the board or its designee. This hearing will allow for evidence to be presented on the child’s behalf and will result in a written opinion.

If the hearing is conducted by a designee, the student may appeal to the board of education for further review. If the student wishes to appeal the board’s decision in district or juvenile court, he must notify the board in writing within five days. The board will then respond with a list of reasons for its action, and the student must file this list, along with a no-fee petition for judicial review, with the court within ten days.

Expunging a juvenile record may help a student avoid adverse education actions, as schools do not have access to expunged records. Juveniles found not guilty are immediately eligible for expungement.

Juveniles who have completed a diversion program or had an informal adjustment are eligible for expungement one year from completion or adjustment.

College applicants may experience collateral consequences affecting access to state higher education. Applications to each campus of the University of Colorado require disclosure of adjudications with written explanation.

If the applicant for federally funded public housing has recently engaged in certain criminal activities, the applicant may be denied public housing benefits. Criminal activity that may prevent an applicant from receiving public housing includes drug-related activity, violent criminal activity, or any other criminal activity that would threaten the health, safety, or right to peaceful enjoyment of the premises by other residents. Additionally, the Colorado Division of Housing specifies that all family members applying for public housing must submit to a background to “screen for criminal and drug-related activity.”

Applicants (or any member of the applicant’s household) that are subject to lifetime registration for a sexual offense will also not be admitted to federally funded public housing.

Although the Colorado Statutes do not specifically state that a juvenile household member can be evicted from public housing, there is a range of criminal behavior that may result in eviction and there is no distinction drawn between an adult and a juvenile. Behavior that may result in eviction includes activities that threaten the health or safety of other tenants or drug-related offenses.

A person seeking to foster children must be licensed, and the state will not license anyone who has been adjudicated delinquent for certain acts, including acts of violence and child abuse.[93]

Most juvenile criminal justice records do not affect eligibility for obtaining or retaining a driving permit or driver’s license. However, if anyone, including a juvenile, receives a ticket for a traffic violation, a paid ticket counts as a “conviction” for the purposes of accumulating points on a person’s driving record that may lead to suspension.

Expunged juvenile records are not available to U.S. military agencies, such as the Colorado National Guard, without a court order.

Persons with expunged juvenile records can legally say that they have no such records.

The Colorado Sex Offender Registration Act applies to juveniles adjudicated delinquent in Colorado for any act that constitutes unlawful sexual behavior. Upon adjudication, the court must inform the juvenile of the obligation to register.

However, a court may choose to exempt an individual from the registration requirements if registration would be “unfairly punitive” and if the individual would not pose “a significant risk to the community. ” One of the express considerations in determining whether exemption is appropriate is whether the offender was under the age of eighteen at the time of the unlawful sexual behavior.

The Sex Offender Registry is maintained by the CBI, and registrants must submit the standard CBI sex offender registration form at least once per year and at other times required by statute.

The CBI form requires disclosure of basic demographic information, aliases, distinguishing characteristics such as scars and tattoos, addresses, next of kin, social security and driver’s license numbers, vehicle information, electronic communication identifiers, and employment and education information. The registry is available to the public, and entries include the basic demographic information, distinguishing characteristics, aliases, address, electronic identifiers, relevant convictions, and comments. The CBI is required to share detailed information with law enforcement, including the Federal Bureau of Investigation.