COLORADO SPRINGS TRIAL LAWYER
experienced and professional attorney - 29 years traffic and criminal defense private practice in Colorado state and municipal courts

Colorado Sealing Criminal Records - Colorado Springs. felonies, felony, felony offense, misdemeanors, misdemeanor, misdemeanor offense, petty offense, traffic offense - criminal allegations, conviction, probation, nolle, nolle prosequi, insufficient evidence, dismissal, straight dismissal, flat dismissal, deferred sentencing or deferred sentence & dismissal - domestic violence, prostitution & other criminal charges - court records, prosecution records, law enforcement records, police records, police reports, records expungement, expunging records. Court criteria and procedures to seal, notice to government agencies, unsealing records and exceptions to sealing criminal justice records.

 
APPROXIMATE TIMING
 

Attorney has published documents which facilitate preparation of a retainer agreement and the lawsuit.

CRITERIA - SEALING COURT ORDER

        In making a determination, the trial court should consider the severity of the offense sought to be sealed, the time which has elapsed since the conviction, the subsequent criminal history of the petitioner, and the need for the government agency to retain the records.  D.W.M. v. District Court, 751 P.2d 74 (Colo. 1988); People v. Bushu, 876 P.2d 106 (Colo. App. 1994).  The court may also consider factors relating to the strength of the case, petitioner's age and employment history, and various consequences if the records are not sealed.  The balance test allows for consideration of other factors on a case-by-case  basis.  Bushu, supra.

        If after the hearing is conducted the court finds that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner outweigh the public interest in retaining the records, the court may order such records to be sealed.  By law, basic identification information will not be sealed.  CRS 24-72-308(1)(c)

        Counsel prepares and e-Files an affidavit of the petitioner setting forth with specificity the privacy interest harm suffered.  This gives notice to the Court and to the DA Office of harm prior to the judge taking the bench.  Exhibits may be attached to the affidavit, such as employment rejection letters and the like.  Background check documents (Colorado state courts litigation history, CBI history, national criminal records search and if PIN is available, Colorado driving record) are available in hardcopy at hearing for introduction into evidence if relevant or needed.

 
        1.  A copy of the order is to be provided to the custodian of record of each agency named in the petition CRS 24-72-308(1)(b)(II).  The Clerk of Court in the sealing civil case receives notice via the sealing order itself.  If records of a different court are being sealed, notice would have to be given to the other Court Clerk.  e.g. municipal court

 
        2.  Records Custodian Failure to Seal - Misdemeanor.  Any person who willfully and knowingly fails to seal is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars, or by imprisonment in the county jail for not more than ninety days, or by both such fine and imprisonment.  CRS 24-72-309

        3.  Four options are exist regarding notice and service of the sealing order upon the agencies with criminal justice records. 
             Usually 8 - 14 agencies are named in a petition to seal.

        4.  Format of the sealing order which will be served upon the agencies with criminal justice records will take one of three forms.
 
                a. Electronic .pdf file of final sealing order.  recommended for Electronic File and Serve
                            The court serves Petitioner's counsel electronically with the sealing order; generally the date of hearing or within 2 days thereafter.  With the final notice and certificate of e-Service, the court order .pdf file can be served electronically upon agencies via email or fax.  Although not certified, the electronic order should be accepted based upon the electronic court seal and the fact it is being served via LexisNexis, the court's e-File and e-Service agency.
                            Upside.  e-Service upon agencies is immediate upon e-Filing - no lag time for mail delivery or personal process service.
                            Upside e-Service via Email.  Lack of court copy expense, court certification expense and USPS postage expense results in a significant net cost savings over personal service or service by U.S. Mail.  LexisNexis imposes a minimal e-Service fee per e-Filing for email e-Service regardless of the number or size of the documents served or number of agencies served. 
                            Downside - e-Service via Fax.  Lack of court copy expense, court certification expense and USPS postage expense results in a significant net cost savings over personal service or service by U.S. Mail, however fax e-Service is more costly than email e-Service.  LexisNexis imposes an additional fax e-Service fee per e-Filing, plus charges per page per agency.

                b. Certified copy of final sealing order.  recommended for personal service or service via U.S. Mail
                            Upside - Avoidance of Additional Fees and Costs.  An agency with records to seal is much more likely to comply with the sealing order if a certified copy has been received.  Compliance and agency sealing will avoid the necessity of unsealing the court file to procure subsequent certified copies.
                            Downside - Additional Expense.  court expense.
                                    $0.75 per page copy expense plus $15 per document court certification fee.
 
                c.  Regular copy of final sealing order - not certified.  not  recommended
                            Upside - Expense Reduction & Safety Net.  For clients desiring to reduce expenses, photocopying by the attorney is less costly than the above court copy expense and court certification fee.  With the safety net of subsequent records check referenced in attorney recommendations below, client will determine whether each agency accepted the regular photocopy and actually sealed records. 
                            Service Method Downside - Potential Additional Fees and Costs.  If an agency refuses to seal records based upon an uncertified photocopy of the sealing order, billable attorney time will be expended in the dispute and the court file will have been sealed.  Motion and order to unseal the court file will be required to procure a certified copy.  Additional fees and costs necessitated by agency dispute, opening the sealed court file, court certification and alternate service of process would be the billable.  This constitutes advisement of the risks.  The client will make the election regarding plain photocopy or copies certified by the court.  Common sense mandates certified copy.  don't be penny wise and pound foolish

Options explanations may seem lengthy.  It is my policy to inform clients of all options which impact the client's rights or finances in order to permit the client to make intelligent, informed decisions.  Method of serving the final sealing order has significant impact upon cost and upon probability of compliance - actual sealing by criminal justice agencies which were served with the final sealing order.

        5.  Attorney Recommendations
            a.  Local criminal justice agencies and the CBI have accepted electronic files of the final sealing order (court seal but not certified by the Clerk of Court) via LexisNexis e-File & e-Serve since the documents are originating from the court.  e-Filing & e-Service option 1 is the fastest, least expensive & most viable method of serving the final sealing order and is therefore recommended by counsel.  As indicated above, it is a new process and may not be available outside El Paso County.
            b.  For clients uncomfortable with electronic process and desire for U.S. Mail and mid-range expense, use of regular U.S. Mail option 2 above is the only other approach if the final sealing order is not personally served on each agency.  With the safety net of subsequent records check in ¶5 §c immediately below, regular U.S. Mail service of the final sealing order is a viable option to save costs and total client expenditure and is most commonly used in sealing cases.
            c.  It is this attorney's belief that if a certified copy of the order to seal is personally served upon the custodian of records with an affidavit of personal service of process being filed with the court, it is much more likely the records will in fact be sealed.  The person served is subject to misdemeanor sanctions if the records are not sealed.  process service option 3 provides the most security for actual sealing, but is the most expensive method of service.  If sufficient reason exists to petition to seal in the first place, client may determine there is sufficient reason to use every means possible to actually have the records sealed by the various agencies.
            d.  Notice of the final sealing order via certified U.S. Mail (certified mail option 4) is not available through this attorney - refer to link for reasons.
            e.  Immediately prior to closing file, counsel conducts an on-line check of Colorado State Courts litigation history and CBI history to ascertain records are sealed and unavailable.  Counsel advises each client to attempt to procure records from each other agency 30 days after entry of the sealing order to verify that records are in fact not accessible.  Please refer to the below links for information regarding searching the FBI "rap sheet" and client records requests to law enforcement agencies.
 

        Upon the entry of an order to seal the records, the petitioner and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such records exist with respect to such person. An individual may deny his past criminal record. CRS 24-72-308 clearly allows an individual to deny past criminal involvement if the criminal record has been sealed pursuant to the statute. D.W.M., supra, Bushu, supra.

Employers, educational institutions, state and local government agencies, officials, and employees may not, in any application or interview or in any other way, require an applicant to disclose any information contained in sealed records. An applicant need not, in answer to any question concerning arrest and criminal records information that has been sealed, include a reference to or information concerning such sealed information and may state that no such action has ever occurred. Such an application may not be denied solely because of the applicant's refusal to disclose arrest and criminal records information that has been sealed.  CRS 24-72-308(1)(f)(I)

        Applicable Maxim:  
        Recommendation:  

If you snooze, you lose.
If the remedy is available, file the petition to seal criminal justice records now.

1. CRS 16-10-301   Evidence of similar transactions - sexual offenses

2. CRS 18-6-810.5  Evidence of similar transactions - domestic violence

3. CRS 13-90-101   Who may testify - interest
           Impeachment

4. CRS 13-90-106   Testimony - exceptions
           Persons of unsound mind
           Children under age 10
               testimony permitted in child abuse, sexual abuse, sexual assault & incest allegations

5. CRS 13-90-107  Privileged communications
           Husband-wife, physician, surgeon, registered professional nurse, psychologist, clergyman, minister, priest, rabbi, certified public accountant, CRS 19-1-103(26), victim's advocate for victim of domestic violence or sexual assault
           Many communications which would otherwise be privileged are no longer privileged when the offense alleged is child abuse, sexual assault or domestic violence.

6. CRE 404  character evidence not admissible to prove conduct - exceptions - other crimes, wrongs, or acts
           Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

7. Impeach of a witness' credibility
           Felony Convictions
               Evidence of prior felony convictions is admissible to attack the credibility of a defendant who testifies on his own behalf. People v. Montez, 197 Colo. 126, 589 P.2d 1368 (1979), CRS 13-90-101
           Misdemeanor Convictions
               A defendant's credibility may not be impeached by evidence of prior misdemeanor convictions. People v. Robles, 183 Colo. 4, 514 P.2d 630 (1973).
               While evidence of prior misconduct, including misdemeanor convictions, may be admitted to attack the veracity of specific testimony by a defendant, People v. Mejia, 188 Colo. 120, 534 P.2d 779 (1975), People v. Terranova, 38 Colo. App. 476, 563 P.2d 363 (1977), impeachment of a defendant "may not be accomplished by attacking the general character of the witness." People v. Taylor, 190 Colo. 210, 545 P.2d 703 (1976).
               Evidence of prior misdemeanor convictions involving false statements to police held admissible for impeachment purposes where focus was on the specific instances of lying, not on the convictions themselves, and the jury was instructed to consider the evidence only for the limited purpose of evaluating the defendant's credibility. People v. Gillis, 883 P.2d 554 (Colo. App. 1994).
               Where defense counsel specifically limited his questioning of the defendant and other character witnesses to a particular time, introduction of character testimony limited to his conduct during that particular time did not raise any inference of untrue testimony concerning defendant's activities during a previous time. People v. Sasson, 628 P.2d 120 (Colo. App. 1981), Lutz v. People, 133 Colo. 229, 293 P.2d 646 (1956).
               Procedural requirements applicable to admission of evidence of similar transactions are not applicable where evidence is introduced to rebut the truth of defendant's direct testimony. People v. Moore, 693 P.2d 388 (Colo. App. 1984).

Due to the potential damaging and prejudicial effect of admitting evidence of prior bad acts or prior transactions, a plethora of law exists with respect to multiple types of criminal offenses.  The above is but a brief glimpse.

Do I need an attorney?

Probably time to loosen the pocket book and hire an attorney.

Unless agreed in writing otherwise at the time of underlying criminal case disposition, it is the policy of the District Attorney's Office to oppose sealing of records in any criminal case.  As with all lawsuits, a person has a right to represent himself / herself.  However, If sealing criminal justice records is of sufficient importance that you are considering, it should be done properly.  Once final order has entered, the matter becomes res judicata - you only have one opportunity to litigate.  No "re-do's" if you commit error and receive an adverse ruling.  You may retain my services or the services of another attorney, but hire competent counsel

A former defendant may contact the relevant Clerk of Court (statewide listing) to procure a copy of entire court file without assistance of counsel.  Order records on-line in El Paso County or call the relevant court during normal business hours.  Minimum threshold - sealing eligibility criteria.

1.  Attorney will not under any circumstance procure a court file for a prospective client unless attorney provided representation during the underlying criminal case.

2.  If provided the court file and the prospective client is interested in retaining if eligible, attorney is willing to review for sealing eligibility without charge.

1.  Attorney will not under any circumstance procure a court file for a prospective client unless attorney provided representation during the underlying criminal case.  Refer to procuring court records.

2.  If provided the court file and the prospective client is interested in retaining if eligible, attorney is willing to review for sealing eligibility under the following conditions.

3.  ATTORNEY REVIEW OF COURT FILE - ELIGIBILITY ASSESSMENT.

                Smaller Court Files - Less than 50 Pages
                a.  If the court file is not large and if provided by the prospective client, as part of the first consultation counsel would review smaller files (50 pages or less) for sealing eligibility without billing fees - no charge.
                b.  Fax Limitation - 35 pages   Do not fax more than 35 pages - please forward via U.S. Mail or FedX
                c.  Offer to review smaller court file is limited to cases within my trade area in which the prospective client has indicated an interest in retaining if eligible to petition for sealing.  If outside my trade area, please contact local counsel.  Attorney will consider court file review and case representation outside his trade area if prospective client is prepared to incur travel time, mileage and expense - one trip for final hearing would be anticipated.  Colorado is a big state for physical travel - I am an attorney located in Colorado Springs.  A map is included in this website for your convenience.

                Larger Court Files - 50 Pages or More
                a.  Hourly fees would be billed for review of larger files (50+ pages); prior trust deposit would be required.
                b.  Hard copy transit by US Mail or FedX would be required.  Unless pre-approved, attorney declines to accept a fax of court files exceeding 35 pages.
                c.  Hard copy documents received will be scanned and shredded - do not mail originals.

4.  SEALING DRUG CONVICTION CASES.  Attorney would also need to review the current Verified Criminal History.
                Fax is acceptable for eligibility review - original verified copy required for petition to seal.

5.  TRANSMISSION OF COURT FILE TO ATTORNEY FOR REVIEW - ELIGIBILITY ASSESSMENT.

                Prospective client may fax or mail the court file to attorney
                Please provide the following contact information with the court file - eligibility assessment will be declined without further notice if not received
                                full name *  current physical address  **  contact telephone number  **  email address if one exists

6.  ASSESSMENT regarding eligibility for sealing criminal justice records will be sent to you without cost.
                You are welcome to call & say hello before faxing the court file, but it is not necessary.  An opinion will be rendered regardless of whether you call or not.
                I hope your case is eligible for sealing criminal justice records and welcome the opportunity to become your attorney.

Client authorization is obtained for any large cost expense.  Final expenditure may run less or client may periodically be asked for additional amounts to be deposited to trust if fees and costs will exceed previous deposits. 

Client will be provided with a trust accounting and itemized billing statement when there has been activity on the account.  At the end of each case, a detailed accounting summary is provided and remaining trust proceeds are refunded.