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Colorado Criminal Law – Sealing – Expunging Criminal Histories – Sealing Criminal Arrests – and Certain Drug Related Criminal Convictions

While Colorado law is in flux in the area of the sealing ( aka expungement) of criminal arrests – and in some cases criminal convictions – the following webpage does an excellent job summarizing the present state of the law.  It is still impossible to seal any but very old drug related convictions in Colorado.  I am hopeful that will change over the next few years.

This summary was prepared by the Colorado Public Defenders office – it is summarized for uploading on this web site.  My thanks to their fine work.

Colorado’s Laws Provide for Limited Sealing of Criminal Records

Criminal records can only be sealed under limited circumstances. Under C.R.S. 24-72-308, arrest and criminal records other than those of convictions can typically be sealed if:

– The records pertain to official actions involving a criminal offense that was not charged, was completely dismissed, or in which the person was acquitted, or

– The records pertain to an offense that was not charged or a case that was dismissed due to a plea agreement in a separate case, and:

A petition to seal the records is filed ten years or more after the date of the final disposition of all criminal proceedings against the person,

and

The person has not been charged with any criminal offense in the ten years since the date of the final disposition of all criminal proceedings.

Conviction records can only be sealed for select drug-related offenses

Under C.R.S. 24-72-308.6, sealing of conviction records for offenses involving controlled substances entered after July 1, 2011, may be possible:

WAIT TIMES TO SEAL COLORADO DRUG CONVICTION

– For a petty offense or a class 2 or 3 misdemeanor, three years after the later of the date of the final disposition of all criminal proceedings against the defendant or the release of the defendant from supervision concerning a conviction.

– For a class 1 misdemeanor, five years after the later of the date of the final disposition of all criminal proceedings against the defendant or the release of the defendant from supervision concerning a conviction.

– For a class 5 or 6 felony, seven years after the later of the date of the final disposition of all criminal proceedings against the defendant or the release of the defendant from supervision concerning a conviction.

– For all other offenses in article 18 of title 18, C.R.S., ten years after the later of the date of the final disposition of all criminal proceedings against the defendant or the release of the defendant from supervision concerning a conviction.

For controlled substance convictions entered prior to July 1, 2011, under C.R.S. 24-27-308.5, sealing is possible when:

– A petition to seal the records is filed ten years or more after the later of the date of the final disposition of all criminal proceedings against the defendant, or the release of the defendant from supervision, and

– The defendant has not been charged with a criminal offense in the ten years since the date of the final disposition of all criminal proceedings or the release of the defendant from supervision.

– Earlier sealing may be available if there is no objection from the district attorney. C.R.S. 24-72-308.6(4)(b).

Instructions for sealing criminal records, as well as the documents necessary for doing so, can be found on the Colorado State Judicial Branch website.

Expunging Opportunities In Colorado for Juveniles Offenders

While Colorado does not have a widely available mechanism for expunging adult criminal records,.. most  juvenile records can be expunged if statutory eligibility criteria are satisfied. C.R.S.19-1-306.

Juvenile records cannot be expunged for:

– A person who has been adjudicated as an aggravated juvenile offender or a violent juvenile offender.

– A person who has been adjudicated for an offense that would constitute a crime of violence under C.R.S. 18-1.3-406.

– A person who, as a juvenile, has been charged by the direct filing of an information in the district court or by indictment pursuant to C.R.S. 19-2-517, unless the person was sentenced as a juvenile in the same matter.

– A person who has been adjudicated for an offense involving unlawful sexual behavior.

Courts and the Department of Revenue can expunge records of a conviction for underage drinking and driving with a BAC of at least .02 but not more than .05 if the person requesting the action is over twenty-one years of age and several additional criteria are met. C.R.S. 42-2-121(5), 42-4-1715(1)(b).

Governmental Discrimination Based on A Colorado Criminal Record

Under many circumstances a criminal offense cannot serve as the sole basis for the state denying an employment opportunity. Colorado’s Public Employment Eligibility Statute provides: 

“the fact that a person has been convicted of a felony or other offense involving moral turpitude shall not, in and of itself, prevent the person from applying for and obtaining public employment or from applying for and receiving a license, certification, permit, or registration required by the laws of this state to follow any business, occupation, or profession.. C.R.S. 24-5-101(1)(a).”

The intent of the statute is to expand employment opportunities for people who have been rehabilitated and are ready to accept the responsibilities of a law-abiding and productive member of society.

However, it exempts certain professions, including:

– Peace officers.

– People in positions involving direct contact with vulnerable persons.

– Educators.

– Persons employed in public or private correctional facilities or juvenile facilities.

– PERA employees.

– State offices and convictions described in article XII, section 4, of the Colorado Constitution.

Regarding moral character requirements, the statute provides:

“Whenever any state or local agency is required to make a finding that an applicant for a license, certification, permit, or registration is a person of good moral character as a condition to the issuance thereof, the fact that such applicant has, at some time prior thereto, been convicted of a felony or other offense involving moral turpitude, and pertinent circumstances connected with such conviction, shall be given consideration in determining whether, in fact, the applicant is a person of good moral character at the time of the application..”  C.R.S. 24-5-101(2).

Many other professions are regulated by statutes that seem to exempt them from the Public Employment Eligibility Statute.

Private Discrimination Based On A Colorado Criminal Record

Private employers have great discretion in determining whether to hire people with a criminal record, and there are few checks on private employment decisions.

Under Title VII of the Civil Rights Act of 1964, employers are not supposed to impose blanket exclusions on employing anyone with a prior arrest or conviction.

Instead, a criminal-history-based employment prohibition should depend on:

(1) the nature and gravity of the offense or offenses;

(2) the time that has passed since the conviction and/or completion of the sentence;

and

(3) the nature of the job held or sought. Regardless, the fact remains that there are few controls on private employers.

No Colorado law prohibits outright discrimination by private employers based on criminal history, and employment can typically be terminated for essentially any reason. Thus, even if a state agency determines that a previously convicted person is eligible for a license to practice a certain profession, that individual has no guarantee of finding an employer willing to accept his or her criminal history.


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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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