Case Dismissal Doesn’t Equal A Clean Record

There are no sweeter words to the criminally accused than “case dismissed.” But for many of our clients, victory in the trial court does not wipe the slate clean. In the information age, an arrest or criminal record can follow a person for the rest of their life and dim an otherwise bright future regardless of the ultimate outcome of a case. As one client recently reported to me, it can be very hard to land the job of your dreams when your arrest record speaks louder than your résumé.

Thankfully, the law in Colorado does allow for some arrest and criminal records to be sealed. But unlike in some states, a Colorado criminal record is not automatically sealed or expunged upon case dismissal. Rather, sealing a criminal record requires that a person file a separate civil lawsuit in the county in which the arrest and/or criminal record exists. Here’s a quick overview of the process.

General Rule of Eligibility

Pursuant to C.R.S. § 24-72-308, a person is eligible to seal their record if:

  • they were acquitted of all charges or all charges were dismissed (including dismissals resulting from successfully completed deferred judgment and sentence agreements).
  • there is only an arrest record, but no charges were filed in court.
  • the case was dismissed due to a plea agreement in another case and 10 or more years have passed from the final disposition of all criminal proceedings and no additional criminal charges have been filed against them since the date of the final disposition of all criminal proceedings.

A petitioner must also pay a $182 filing fee to the court. Id.

Drug Offenses

For some drug offenses, a person can be eligible to seal their record even if they suffered an actual conviction. Pursuant to C.R.S. § 24-72-308.5, a person is eligible to seal their record of conviction for any petty, misdemeanor or class 5 or class 6 felony drug offense not involving sale, manufacturing or dispensing so long as:

  • they have not reoffended; and
  • 10 or more years have passed from the date of final disposition or release from supervision, whichever occurs later.

Some petitioners may find that they are eligible to seal even after a F-4 or higher drug conviction if that offense was later reduced to an F-5 or F-6 by the legislature. C.R.S. § 24-72-308.5(4)(a)(IV). However, petitioners falling into this category of eligibility must secure the consent (or non-objection) of the District Attorney and pay an additional fee of $200 into the judicial stabilization cash fund. C.R.S. § 24-72-308.5(4)(a)(IV)(b)

A recent statutory enactment will soon begin to deepen the pool of eligible applicants by shortening the 10-year waiting period for those convicted of drug offenses occurring on or after July 1, 2011. C.R.S. § 24-72-308.6. The new waiting periods are as follows:

  • 3 years for petty offenses or class 2 or 3 misdemeanors
  • 5 years for class 1 misdemeanors
  • 7 years for some class 5 or 6 felonies

The Standard for Granting a Petition

Under C.R.S. § 24-72-308(c), the Court may order the sealing or a criminal record where the criminal offense is completely dismissed upon a finding that “the harm to the privacy of the petitioner or the dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records.” In applying this provision, the Colorado Court of Appeals determined that a trial court’s balancing test may consider the following factors:

  • The severity of the offense;
  • The time lapsed since the conviction;
  • The subsequent criminal history of the petitioner;
  • The need for the government agency to retain the records;
  • The strength of the government’s case against the petitioner;
  • The petitioner’s age and employment history; and
  • The specific adverse consequences the petitioner may suffer if the records are not sealed, including “the social stigma involved in an arrest record, the likelihood of increased police scrutiny for later investigations, the use of records by judges in making decisions regarding sentencing, granting bail, or release pending appeal, the effect of an arrest record in seeking employment.”

People v. Bushu, 867 P.2d 106, 107 (Colo. App. 1994); see also In re Petition of R.J.Z., 104 P.3d 278 (discussing the application of these factors). This list is not intended to be all-inclusive and the trial court may “consider specific factors on a case by case basis.” R.J.Z. at 280.

One Bite at the Apple

A 2011 Court of Appeals decision made it clear that subsequent actions to seal an arrest or criminal record following an unsuccessful petition are now barred by claim preclusion or res judicata. F.M. v. People, 10CA0232 ****(Colo. App. 2011).

One Last Thought

The order to seal should direct the clerk of the court to seal not only the criminal case, but the record of the civil action as well.