Sealing Criminal Cases=Just Smart Practice

It’s an age-old adage: I made a mistake when I was younger, and now it’s coming back to haunt me.  Sealing criminal cases and eligible arrest records now can make all the difference for your future self.  Just think ahead—do you really want to explain a 20 year old conviction for shoplifting when you try to get a promotion at work?  What about when you really need public benefits and a stupid drug case is tying things up?  Best practice is to put the offense behind you and seal all eligible records as soon as you are able.  Even better, if your case was dismissed or you were found not guilty, you can seal ASAP!

What Records Can Be Sealed?

Almost all arrest records, conviction records, Colorado Bureau of Investigation (CBI), and even some FBI records can be sealed if the underlying offense is eligible.   (List of eligible offenses is online here). Sealing criminal cases can sometimes be done immediately. Think: acquittal or outright dismissal of your case.  Other cases can be sealed only after you successfully complete a probationary sentence. Think: deferred judgement or diversion.  Lastly, municipal, drug, and other eligible cases can be sealed only after a waiting period.  Think: 10 years after you finish probation, you can finally wipe your record clean.

Sometimes whether you can seal and when depends on how long ago the offense was committed.  Laws change over time, after all, and the sealing laws changed in 2008, 2011, and 2014.  Many of our state’s drug laws changed during those time frames, as well.  Low level drug offenders may want to investigate whether sealing is appropriate immediately!

Not All Offenses Are Eligible To Be Sealed

Some cases such as DUI and other traffic cases can’t be sealed. In part, that is due to the new law that a fourth-DUI-in-a-lifetime is a felony DUI. Some of this is because of the public’s perception, such as sex offenses where lifetime sex offender registration is required.  Nevertheless, a skilled attorney may be able to advise you about how to mitigate the effects of such a case.  In some instances, you may be eligible for a Petition to Deregister as a Sex Offender, for example.  Likewise, if you were under 21 and only convicted of “underage” drinking and driving (“UDD”), you would be eligible for expungement, whereas an adult would not be. (More on UDD offenses here).

Other, more practical things can also make a case ineligible for sealing.  Typically, any unpaid restitution, fines, court costs, late fees, or other fees ordered by the Court in the case will result in the case being held open for a longer period of time.  In addition, if your case was dismissed for a plea in a second case, your records may not be sealed.

Timing of Sealing is Critical

In Colorado, different types of cases can only be sealed after a certain period of time has lapsed without any further convictions or violations.  I tell most of my clients that if they can keep their nose clean and stay out of trouble, they will almost certainly be able to seal their records.  There’s no reason to wait to seal criminal cases beyond the statutory waiting period, either.  If you’re worried about cost, sealing is usually a one-time, flat rate legal fee with my firm,Nicol Gersch Law Offices, LLC.  The only additional cost is the statutory filing fee assessed by the court when we file your pleadings.

If your criminal defense attorney is not telling you at the time of your conviction, plea deal, acquittal or other outcome about the possibility of sealing your case and arrest records, they aren’t doing you any favors.  As an informed consumer, you should ASK your attorney for information about sealing your records, too.  Even if your Petition to Seal has been denied once, your case may be eligible later—but there’s a penalty for failed attempts: only one Petition to Seal can be filed each twelve-month period.  If you try and fail to seal your records, you then have to wait a year to petition again.  A Colorado criminal defense attorney can help you get it right the first time!

Sealing vs. Expunging Record

Sealing criminal cases is different than expunging records.  Sealing criminal cases and records means that your arrest record, conviction record, etc. is still out there and can be accessed by law enforcement.  In addition, records can be unsealed, too, although it’s an uphill battle to do so.  Basically, in a sealed case situation the Court, law enforcement and criminal justice agencies will always have access to the file. The files are not destroyed. However, as provided under the statute, if inquiries are made by anyone other than a criminal justice agency, all agencies may respond that “no such record exists with respect to such person.”

Expungement is actually deleting the records.  In Colorado, expungement is limited to juvenile cases of a certain class.  “Expungement” means your records will be considered to have never existed, and the public will not be able to see the records. You may lawfully deny that you have ever been arrested, charged, adjudicated, convicted, or sentenced in regards to the expunged matter. A respondent parent or guardian (parent or guardian named in a case), or a court-appointed guardian ad litem may also ask the court to expunge the records. (See the Colorado Judicial Branch instructions for more information).

If Your Case Involved a Victim, There are Extra Hoops To Jump Through

A DA must notify a victim of any crime of your intent to seal the records.  Even if you are otherwise eligible to have your case sealed, a victim still has to be given an opportunity to object and address the court regarding the sealing petition.  The Victims’ Rights Act is a Colorado Constitutional Amendment which requires that the court and DA notify the victim and give them an opportunity to be heard.  Sometimes, victims will ask DA’s to reiterate their position to the court on their behalf, and other times they will want to come and present a statement either in writing or verbally.  Victim Impact Statements, as they’re called, can have a big impact on the court.  So, keep in mind that just because you are eligible for sealing, it’s ultimately up to the judge as to whether such a motion will be granted.

A Court Can and Often Will Schedule a Hearing on Sealing Criminal Cases

Sometimes even in the most clear-cut cases, the court will schedule a hearing. You need to be prepared to address why your case should be sealed.  Oral argument is not common, but can occur in such situations.  Sometimes it’s necessary to set the matter for a hearing to give law enforcement, a victim, or other interested party an opportunity to respond.  Either way, sealing criminal cases is usually worth the effort![/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][vc_cta h2=”The best advice for sealing criminal cases: Just Do It.  ” txt_align=”center” shape=”square” color=”black”]If you can’t handle it alone, want advice, or want someone to go to a hearing with you, contact me at today.