The Ins and Outs of Sealing Criminal Justice Records in Colorado

Hannah Proff February 19, 2024

A few months ago, a potential client came into my office with a lengthy criminal history resulting from severe addiction in his early 20s. Although he had been sober and law-abiding for years, his long list of felony convictions held him back when it came to housing, travel, and employment. He made an appointment with my office to determine how many of his felony convictions were eligible for sealing. After a bit of research, I determined that all of his felonies were eligible for sealing. Within months, he went from having a lengthy felony criminal history to having all of his cases sealed. Are you curious if your adult criminal record is eligible to be sealed? I have created a series of flow charts to help you understand the sealing statute. If you are going to file a Motion to Seal, I recommend you read the self-help guide created by the Colorado Courts.

Sealing of Arrest Records when no Charges were Filed

Determining Eligibility: Were you a person in interest in a police investigation in which charges were never files?

· No: Not eligible for sealing of arrest record

· Yes:

Did you complete a diversion agreement, and no criminal charges were filed?

§ No: Continue

§ Yes: Eligible to seal arrest record

o If you were never charged, has the statute of limitations for the offense for which the person was arrested run?

§ No: Continue

§ Yes: Eligible to seal arrest record

o If you were never charged and the statute of limitations has not run but you are no longer being investigated by law enforcement for commission of the offense.

§ No: Not currently eligible

§ Yes: Eligible to seal arrest record

Sealing Criminal Justice Records Other than Convictions—Simplified Process

Determining Eligibility: Did the case involve a misdemeanor or felony charged in criminal court?

· No: Not eligible for sealing

· Yes:

o Was there a verdict of not guilty at a trial?

§ No: Continue

§ Yes: Eligible for simplified sealing

o Was the case dismissed in its entirety prior to any trial or alternative sentencing?

§ No: Continue

§ Yes: Eligible for simplified sealing

o Was there completion of a diversion agreement or a deferred judgement and sentence and all counts were dismissed?

§ No: Continue

§ Yes:

· Do the records pertain to a deferred judgement and sentence for a felony offense for the factual basis involved in unlawful sexual behavior?

o No: Continue

o Yes: Not eligible for sealing

· Do the records pertain to a deferred judgement and sentence concerning the older of a commercial driver’s license or operator of a commercial motor vehicle?

o No: Continue

o Yes: Not eligible for sealing

Sealing of Criminal Conviction Records

Determining Eligibility: Was there a conviction in a criminal case?

· No: Not eligible for sealing of a criminal conviction record.

· Yes: Continue

o Has restitution been paid in full?

§ No: Not eligible to seal

§ Yes: Continue

o Was the offense a civil infraction, petty offense, or a drug petty offense?

§ No: Continue

§ Yes:

· Has one year passed since the date of the final disposition of all proceedings against the defendant or the release of the defendant from supervision concerning the conviction?

o No: Not eligible for sealing, must wait until one year has passed.

o Yes:

§ Eligible for sealing[1]

o Was the offense a class 4, class 5, or class 6 felony, a level 3 or level 4 drug felony, or a class 1 misdemeanor?

§ No: Continue

§ Yes:

· Have three years passed since the date of the final disposition of all proceedings against the defendant or the release of the defendant from supervision concerning the conviction?

o No: Not eligible for sealing, must wait until three years have passed.

o Yes: Eligible for sealing

Even once your criminal justice record is sealed, it is still available to the courts, law enforcement agencies, criminal justice agencies, and prosecutors. C.R.S. § 24-72-703 (2)(a)(1). And, if you obtain a new criminal conviction, the court will unseal your records.

Once your record is sealed, “employers, state and local government agencies, officials, landlords, employees, and other entity shall not require an applicant to disclose any information contained in a sealed criminal justice record in any application or interview….” C.R.S.A § 24-72-703 (2)(d)(I).

Sealing offers people a fresh start after completing their sentence and the required waiting period. If you need help sealing your criminal record, please make an appointment for a free consultation with my office or sign up for a free legal clinic to obtain help sealing your criminal convictions.

[1] If the offense is for a second or subsequent conviction for a violation of section 18-13-122(3) (Illegal possession or consumption of ethyl alcohol or marijuana by an underage person--illegal possession of marijuana paraphernalia by an underage person) then in order to have the offense sealed only if the defendant has not been convicted of or is not currently charged with any felony, misdemeanor, or petty offense during the period of one year after the date of the defendant's conviction for a violation of section 18-13-122(3).

Book Recommendation: Boys & Sex, by Peggy Orenstein

Hannah Proff December 21, 2023

Representing young people (10-17) who are being investigated for or charged with sexual assault or sexual misconduct comes with a whole host of unique challenges, which is why families must hire an attorney who understands the subtlety of the laws that govern juvenile sexual misconduct in Colorado.

When I represent a child accused of sexual misconduct, my first step is to build rapport with the young person and to determine their level of understanding of essential sex education topics. These initial conversations cover what they have learned in formal classes in school (generally next to nothing), and we also discuss other sources of information like the internet, conversations with their peers, and their parents. Over the years, I facilitated countless conversations with young people on topics ranging from pornography, hookups, and consent.

Sometimes, these conversations involve a youth’s parents. But, even if the youth doesn’t want their parents present, I regularly have a separate meeting with my client’s parent to talk about youth sexuality more generally. Talking to a teenager about their sexuality can be awkward, and a 2019 study revealed that 63 percent of teen boys reported their parents had never talked to them about basic sexual topics such as contraception. So, it is not surprising that many youths report to me that many of them have never had an in-depth conversation with their parents about sexual education topics. For this reason, when I talk to parents of children identified as male who are charged with sexual misconduct, I regularly recommend they read Boys and Sex by Peggy Orenstein. Orenstein spent years speaking to young men about a whole host of topics, including pornography as the new sex education, locker room talk, hookup culture, and their experiences as both perpetrators and victims of sexual violence. The resulting book is an un-put-downable look into the struggles and experiences of boys and young men of today.

Families who have a child accused of sexual assault or misconduct are forced into a situation where they must talk with their child about topics that many have avoided for years. But what I have seen in my ten years facilitating this complicated conversation is that the majority of the youth I represent, whether they are innocent or guilty, come out on the other side of a sexual assault allegation having learned valuable lessons about their sexuality and having opened commitment to speaking with their parents, guardians, and loved ones about conversations that they historically treated at taboo.

The Ins and Outs of Juvenile Record Expungement in Colorado

Hannah Proff December 8, 2023

In my office, I have a poster that reads, “Each of us is more than the worst thing we have ever done.” A quote from one of my favorite books, Just Mercy, written by civil rights attorney Bryan Stevenson. (2014, 17-18) In my legal practice, I work tirelessly to ensure that prosecutors and judges see my clients as whole people, not just someone accused of a crime of delinquent offense.

Because I want my clients to move on with their lives after their case is dismissed or they finish their sentence, I am always eager to help clients expunge or seal their juvenile or criminal record once they are eligible because having a juvenile or criminal record can lead to negative collateral consequences that prohibit people with criminal and juvenile records from accessing employment, occupational licensing, housing, voting, education, and other opportunities.

This post will cover what delinquency offenses are eligible for expungement. I created flow charts to help you determine if your case is eligible for expungement. If so, you can file the paperwork pro se (without an attorney), I recommend you read the self-help guide created by the Colorado Courts before filing, Or feel free to schedule a consultation with my office so I can help you file all the petition to ensure you move forward without the negative consequences of a juvenile delinquency offense on your record.

Mandatory Expungement

Determining Eligibility: Is the case a juvenile delinquency case?

No: Not eligible for mandatory expungement
Yes:
- Was there a finding of not guilty at an adjudicatory trial?
  - No: Continue
  - Yes: Eligible for mandatory expungement
- Was the petition dismissed in its entirety prior to any disposition or alternative sentencing?
  - No: Continue
  - Yes: Eligible for mandatory expungement
- Was there completion of a sentence or alternative to sentencing (deferred adjudication, informal adjustment, or diversion) for a petty or class 2 or 3 misdemeanor offense, or level 1 or 2 drug misdemeanor?
  - No: Continue
  - Yes:
    - Does the offense involve unlawful sexual behavior?
      - No: Eligible for mandatory expungement
      - Yes: Not eligible for mandatory expungement
- Are there any felony, misdemeanor, or delinquency actions pending or being initiated against the youth?
  - No: Eligible for mandatory expungement
  - Yes: Not eligible for mandatory expungement

Automatic Expungement of Records

If a juvenile delinquency case is ineligible for mandatory expungement, the next question is whether the case is eligible for automatic expungement. If eligible, juvenile delinquency cases will be expunged without a hearing if there are no objections from the prosecutor or victim.

Determining Eligibility: Is the case a juvenile delinquency case?

No: Not eligible for mandatory expungement
Yes: Continue
- Was there completion of a diversion program, a deferred adjudication, or an informal adjustment for all charges that are not eligible for automatic expungement?
  - No: Continue
  - Yes: Eligible for automatic expungement
- Was the juvenile sentence for an adjudication for a class 1 misdemeanor or petty or misdemeanor offense that is not otherwise eligible under mandatory expungement? This includes misdemeanor sexual offenses.
  - No: Continue
  - Yes: Eligible for automatic expungement
- Was the juvenile sentence for an adjudication for a felony offense or felony drug offense so long as the case is not:
  - A felony offense of unlawful sexual behavior, defined in C.R.S. § 16-22-102(9);
  - A felony offense that was crime of violence as described in C.R.S. § 18-1.3-406;
  - A felony offense constituting a class 1 or 2 felony;
    - No:Continue
    - Yes: Not eligible for automatic expungment
- The juvenile has no prior felony adjudications.
  - No: Not eligible for automatic expungement
  - Yes: Eligible for automatic expungement

If you are eligible for expungement pursuant to this section, the agency supervising the juvenile must prepare a report when supervision is complete. The prosecution and victim have thirty-five days after the filing of the report to object. If the prosecutor or victim objects, then the case will be scheduled for a hearing. At the hearing on expungement, the Court will consider whether the juvenile has been rehabilitated to the satisfaction of the court, and whether it is in the best interest of the juvenile and the community to expunge the record. Although the juvenile is not required to appear at the hearing, they do have the right to appear and to present evidence in writing prior to the hearing or in person at the hearing. If your case is set for an expungement hearing, this might be a good time to contact the attorney who originally represented you to see if they can represent you at this hearing.

Petitioning for Expungement

If a juvenile’s records do not fall under the mandatory or automatic process outline above, their case might still be eligible for expungement if they petition the court.

Determining Eligibility: Is the case a juvenile delinquency case?

No: Not eligible for expungement
Yes: Continue
- Was your case eligible for mandatory or automatic expungement?
  - No: Continue
  - Yes: Peruse mandatory of automatic expungement.
- Do you have a felony, misdemeanor, or delinquency action pending?
  - No: Continue
  - Yes: Not eligible to petition to expunge.
- Has it been 36 months since the date of the juvenile’s unconditional release from a juvenile sentence?
  - No: Not eligible to petition to expunge
  - Yes: Continue
- Were you charged with any of the following:
  - As an Aggravated Juvenile Offender or Violent Juvenile Offender;
  - Homicide;
  - Vehicle or Traffic Violations;
  - Felony Unlawful Sexual Behavior
    - Yes: You are not eligible to expunge
    - No: You are eligible to petition to expunge your juvenile record!

Expungement of Records Relating to Law Enforcement Contact

A person may petition the court to expunge records related to law enforcement contact that did not result in referral to another agency.

Determining Eligibility: Was a juvenile investigated or contacted by law enforcement for a delinquency offense?

No: Not eligible for expungement of records relating to law enforcement contact.
Yes: Continue
- Has one year has passed since the law enforcement contact; and
- There are no proceeding concerning a felony, misdemeanor, or delinquency action pending against the petitioner.
  - Yes, to both questions: Eligible for expungement.

The process to seal a record relating to investigation or police contact in which a case that was never filed in court is a bit trickier, because you have to file a new civil case with the court.

If your petition for expungement is denied, you can reapply after 12 months.

Youth in Colorado should be able to move into adulthood without their juvenile record affecting their future; for that reason, all eligible youth should file to expunge their records. If you still have questions or are interested in having an attorney help you expunge a juvenile record, please schedule a consultation with my office.

Book Recommendation: Wintering: The Power of Rest and Retreat in Difficult Times, by Katherine May

Hannah Proff November 27, 2023

One thing I love about being a criminal and juvenile defense attorney is that I have the privilege of guiding my clients and their families through some of the most challenging times in their lives. People rarely call my office on a good day; instead, they call in crisis. Maybe they just received a summons in the mail, or a detective just knocked on their door. When these challenges arise, my clients often feel confused and out of control; they need my counsel. I thrive in these situations; my 15 years of experience as a criminal and juvenile defense lawyer and my empathetic nature help me guide clients and their families through the stress of a criminal or delinquency case. In times of acute crisis, one is expected to question if the stress they feel will ever pass.

I found Katherine May's memoir, Wintering: The Power of Rest and Retreat in Difficult Times, relevant because of my professional role in people's lives during difficult times. May writes about the dark times she has experienced and the societal idea that one should rebound quickly from these trying life events. However, May suggests instead that we lean into "wintering," which she describes as "a fallow period in life when you're cut off from the world, feeling rejected, on the sidelines, blocked from progress, or cast into the role of an outsider." May suggests that rather than suppressing these feelings of stress and sadness, we should lean into the uncertainty and the possibilities for growth in winter's liminal spaces.

I regularly remind my clients that worry and anxiety do nothing to resolve their cases. I ask them to spend less time stressing and more time working on the goals I have laid out for them, which will hopefully effectuate a favorable resolution of their case. I encourage them to prioritize their needs while their case is pending. Until I read May's book, I hadn't realized I had been suggesting a form of "wintering" to my clients.

We all feel undone sometimes, and a criminal or juvenile case is highly stressful for everyone involved. However, after each winter comes spring, and my goal is to guide my clients through the trying times so they can emerge even stronger than before.