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2011 Law Changes to Colorado Expungement Record Sealing Laws as they apply to Drug Related Offenses

…By H. Michael Steinber Colorado Criminal Defense Lawyer — Colorado Record Sealing Expungement Cases

In 2011, in Colorado House Bill 11-1167 – Colorado state legislators made certain changes to the existing laws:

Existing law requires that:

• the sentencing court or probation department advise defendants of their petition rights;

• the State Court Administrator post a list of all petitions for at least 30 days prior to action on the petition by the district court;

• the defendant satisfies all outstanding costs in the underlying case prior to petitioning;

• the defendant provide a list of custodians of conviction records and, if successful, pay each custodian for costs incurred to seal a record;

• a conviction record is not deemed a public conviction record and its disclosure may not be required for employment applications, rental housing applications, and other purposes, including questions by government agencies other than a criminal justice agency or the Board of Law Examiners;

• the destruction of sealed records is not authorized by virtue of the petition process; and

• conviction records will be unsealed if the defendant is later convicted of a new criminal offense or where, upon petition, the court finds the public interest outweighs the defendant’s interest in privacy.

The new law amends the process for sealing the record of a criminal conviction under Colorado’s Uniform Controlled Substances Act, reduces the waiting period for certain classes of convictions, and authorizes the process of records sealing for additional classes of convictions. With limited exceptions, the bill applies only to convictions on or after July 1, 2011.

H.B. 11-1167

Sealing criminal records – drug offenses – time periods – district attorney –  no reporting of sealed convictions – advisement of rights – applicability July 1, 2011.

This act amends (changes) the petition process for sealing certain drug offense criminal conviction records. The time period the defendant has to wait to petition the court to seal the record depends on the severity of the offense.

In order to have the record sealed, the defendant must show the court that he or she has not been convicted of another offense or been charged with another offense since the discharge of the offense for which the defendantis seeking to have sealed.

The district attorney has the right to object to the petition or veto the request for all offenses except petty offenses.

Also depending on the severity of the offense, the court can immediately order the record sealed, can consider the petition based on established criteria, or can hold a hearing to decide the petition. The court, in making the decision whether to seal conviction records, considers the privacy interests of the defendant against the public interest in retaining the conviction records as open records.

Conviction records cannot be sealed if the defendant still owes court-ordered restitution, fines, or fees.

A defendant who successfully petitions a court for the sealing of conviction records mustprovide the Colorado bureau of investigation (bureau) and each custodian of the conviction records with a copy of the court’s order to seal the conviction records and pay to the bureau any costs related to the sealing of the conviction records in the custody of the bureau.

Employers and certain institutions and agencies are prohibited from requiring an applicant to disclose information in sealed conviction records. Law enforcement will reportthat there are no public records in response to inquiries about sealed criminal conviction records. The office of the state court administrator must post on its web site a list of allpetitions to seal conviction records that are filed with a district court.

The act prohibits a court from granting a petition to seal conviction records until at least 30 days following the posting.

Lay Terms Summary

The petitioner, under this law, applies to the county district court where the conviction was entered. The court, usually after a hearing, then makes the decision as to “whether the harm to the privacy of the defendant or the dangers of unwarranted consequences to the defendant outweighs the public interest in keeping the conviction records open.”

If the petition is granted the court would then order the records sealed.

The law does not vacate or remove the conviction or sentence, it makes it harder to find in a criminal background check.

The petition can be contested, and the person filing the petition is responsible for paying the fees associated with the process. It only covers drug convictions after July 1, 2008.

Importantly. The law also requires that any conviction following the record sealing will lead to all records being unsealed, and in the event of future criminal prosecution for a different case, the law enforcement agency will have access to the sealed records.

Depending on the nature of the offense, a petitioner would have anywhere from 3 to 10 years after disposition of conviction to file for the sealing.

Finally, the law measure also calls for a parole officer or probation officer to give a written advisement of these rights, upon the termination of parole or probation.

Here is the link to the Actual Law:

http://www.leg.state.co.us/CLICS/CLICS2011A/csl.nsf/fsbillcont3/4635214456F0B7388725780800804135?Open&file=1167_enr.pdf


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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