Previous  Next

19-1-306. Expungement of juvenile delinquent records - definition.

Text

 

(1) (a) For the purposes of this section, expungement is defined in section 19-1-103 (48). Upon the entry of an expungement order, the person who is the subject of the record that has been expunged may assert that he or she has no juvenile delinquency record. Further, the person who is the subject of the record that has been expunged may lawfully deny that he or she has ever been arrested, charged, adjudicated, convicted, or sentenced in regard to the expunged case, matter, or charge.

(b) The court, law enforcement, and all other agencies shall reply to any inquiry regarding an expunged record that no record exists with respect to the person named in the record, unless information may be shared with the inquiring party pursuant to subsection (3) of this section.

(c) The expungement order only applies to the named juvenile and not to any co-participant.

 

(2) (a) At the time of the adjudication, the court shall advise the adjudicated juvenile and any respondent parent or guardian, in writing, of the right to expunge and the time period and process for expunging the order. The court, on its own motion or the motion of the juvenile probation department, the juvenile parole department, the juvenile, a respondent parent or guardian, or a court-appointed guardian ad litem, may initiate expungement proceedings concerning the record of any juvenile who has been under the jurisdiction of the court.

(b) If a juvenile is supervised by probation, the probation department, upon the termination of the juveniles supervision period, shall provide the juvenile with a written advisement of the right to expungement and the time period and process for expunging the record.

(c) If a juvenile is supervised by parole, the department or division supervising the juveniles parole, upon the termination of the juveniles parole supervision period, shall provide the juvenile with a written advisement of the right to expungement and the time period and process for expunging the record.

(d) If the juvenile is supervised by a diversion officer or agency other than probation, the agency supervising the diversion program, upon the termination of the juveniles diversion period, shall provide the juvenile with a written advisement of the right to expungement and the time period and process for expunging the record.

(e) If a juvenile is sentenced in municipal court, the municipal court, at sentencing, shall provide the juvenile and any respondent parent or guardian with a written advisement of the right to expungement and the time period and process for expunging the record. The municipal court may provide the notice through a municipal diversion program, the city attorney, or a municipal probation program.

(f) If a juvenile is committed to the division of youth services and is released without a requirement to complete further parole, the division shall provide the juvenile with a written advisement of the right to expungement and the time period and process for expunging the record.

(g) Expungement must be effectuated by physically sealing or conspicuously indicating on the face of the record or at the beginning of the computerized file of the record that the record has been designated as expunged.

(h) The prosecuting attorney shall not require as a condition of a plea agreement that the juvenile waive his or her right to expungement under this section upon the completion of the juveniles sentence.

(i) Prior to the court ordering any records expunged, the court shall determine whether the juvenile has any felony, drug felony, misdemeanor, drug misdemeanor, petty offense, or delinquency actions pending, and, if the court determines that there is a felony, drug felony, misdemeanor, drug misdemeanor, petty offense, or delinquency action pending against the juvenile, the court shall stay the petition for expungement proceedings until the resolution of the pending case.

 

(3) (a) After expungement, basic identification information on the juvenile and a list of any state and local agencies and officials having contact with the juvenile, as they appear in the records, are not open to the public but are available to a prosecuting attorney, local law enforcement agency, the department of human services, the state judicial department, and the victim as defined in section 24-4.1-302 (5); except that such information is not available to an agency of the military forces of the United States.

(b) Notwithstanding any order for expungement pursuant to this section, any record that is ordered expunged is available to any judge and the probation department for use in any future proceeding in which the person whose record was expunged is charged with an offense as either a juvenile or as an adult. A new criminal or delinquency charge may not be brought against the juvenile based upon information gained initially or solely from examination of the expunged records.

(c) Notwithstanding an order for expungement pursuant to this section, any criminal justice record of a juvenile who has been charged, adjudicated, or convicted of any offense shall be available for use by the juvenile, the juveniles attorney, a prosecuting attorney, any law enforcement agency, or any agency of the state judicial department in any subsequent criminal investigation or prosecution as a substantive predicate offense conviction or adjudication of record.

(d) Notwithstanding any order for expungement issued pursuant to this section, nothing prevents the prosecuting attorney, including the staff of a prosecuting attorneys office or a victim or witness assistance program or a law enforcement agency or law enforcement victim assistance program, from discussing with the victim the case, the results of any expungement proceedings, information regarding restitution, and information related to any victim services available to the victim as defined in section 24-4.1-302 (5), but copies of expunged records must not be provided to the victim. The victim may petition the court and request that a copy of the expunged records be provided to the victim. If the court finds that there are compelling reasons for the release, a copy of the expunged records may be released to the victim. If the court orders the release of a copy of the expunged records to the victim, the court must issue a protective order regarding the usage of the expunged records.

(e) Notwithstanding any order for expungement issued pursuant to this section, any information, including police affidavits and reports and records related to any prior conviction or adjudication, are available without court order to the persons, government agencies, or entities allowed access to or allowed to exchange such information pursuant to section 19-1-303 for the purposes described therein. Any person who knowingly violates the confidentiality provisions of section 19-1-303 is subject to the penalty in section 19-1-303 (4.7).

(f) Notwithstanding any order for expungement issued pursuant to this section, nothing in this section precludes a county department of human or social services employee from reviewing internal department records that are ordered expunged and are in the county departments possession for purposes of department investigations and case management in the provision of child welfare services.

 

(4) (a) The court shall order all records in a juvenile delinquency case in the custody of the court, and any records related to the case and charges in the custody of any other agency, person, company, or organization, expunged within forty-two days after:

(I) A finding of not guilty at an adjudicatory trial;

(II) Dismissal of the petition in its entirety prior to any disposition or alternative to sentencing, including diversion, a deferred adjudication, or an informal adjustment; or

(III) The completion of a sentence or alternative to sentencing, including diversion, a deferred adjudication, or an informal adjustment, for a petty offense, drug petty offense, class 2 or class 3 misdemeanor offense, or level 1 or level 2 drug misdemeanor if the offense does not involve unlawful sexual behavior as defined in section 16-22-102 (9), is not an act of domestic violence as defined in section 18-6-800.3, or is not a crime listed under section 24-4.1-302 (1), and the defendant was under eighteen years of age at the time the offense was committed.

 

(b) (I) Upon successful completion of diversion at the prefiling level as an alternative to the filing of a petition, the custodian of any record shall expunge the record in the custody of law enforcement, the juveniles school, the diversion provider, and the district attorney without the need for a court order.

(II) The district attorney or other diversion provider shall notify the Colorado bureau of investigation, the law enforcement agency that had contact with the juvenile, and the juveniles school, if the incident occurred at school or the district attorney notified the school of the case, that diversion is complete and the records are expunged. Any law enforcement agency or school that receives a notice shall acknowledge receipt of the notice. The Colorado bureau of investigation, law enforcement agency, school, diversion provider, and district attorney shall treat the records as expunged within thirty-five days after the completion of diversion, and all provisions of this section addressing expunged records apply to those records.

(III) If victim notification is required pursuant to part 4.1 of title 24, the district attorney shall notify the victim prior to sending the notice pursuant to subsection (4)(b)(II) of this section, and offer the victim an opportunity to object. If the victim objects, the district attorney shall notify the court and the diversion provider. Upon receipt of the notice of objection from the district attorney, the diversion provider shall complete and file a report pursuant to subsection (5)(c) of this section, and the provisions of subsections (5)(e), (5)(e.5), (5)(f), and (5)(g) of this section apply.

(c) The court shall, on or before November 1 of each year, review all juvenile delinquency court files during the two previous years that resulted in a finding of not guilty; a dismissal of the petition; a sentence for a petty offense; a sentence for a drug petty offense; a sentence for a drug misdemeanor offense; or a sentence for a class 2 or class 3 misdemeanor offense if the offense does not involve unlawful sexual behavior as defined in section 16-22-102 (9), is not an act of domestic violence as defined in section 18-6-800.3, or is not a crime listed under section 24-4.1-302 (1), and the defendant was under eighteen years of age at the time the offense was committed. The court shall enter an expungement order for all juveniles eligible for expungement pursuant to this subsection (4), if the expungement order was not previously made.

 

(5) (a) At the time that the court orders the following sentences or alternatives to sentencing, the court shall make a finding that the juvenile is eligible for expungement pursuant to this subsection (5) and include that finding on the written mittimus or other sentencing document:

(I) A juvenile diversion program, a deferred adjudication, or an informal adjustment, except for those described in subsection (4)(a)(III) of this section;

(II) A juvenile sentence for an adjudication for a class 1 misdemeanor or a petty or a misdemeanor offense that is not eligible for expungement pursuant to subsection (4) of this section; or

(III) Repealed.

(IV) A juvenile sentence for an adjudication for a felony offense or felony drug offense if:

(A) The felony offense did not constitute unlawful sexual behavior as defined in section 16-22-102 (9);

(B) The felony offense was not a crime of violence as described in section 18-1.3-406;

(C) The felony offense was not a class 1 or class 2 felony; and

(D) The juvenile had no prior felony adjudications.

(b) Repealed.

 

(c) (I) If the court makes a finding that a juvenile is eligible for expungement pursuant to subsection (5)(a) of this section, the agency supervising the juvenile shall, at the conclusion of the agencys supervision, prepare a report and summary of supervision outlining the performance of the juvenile while under supervision. The supervising agency shall provide the report to the court and provide a copy of the report to the prosecuting attorney, the juvenile, and the juveniles attorney of record no earlier than thirty-five days prior to the end of supervision and no later than fourteen days after the conclusion of supervision. If there is no supervising agency, the court shall send a notice that the unsupervised sentence is complete to the district attorney when the sentence is complete.

(II) Upon receipt of the report or notice pursuant to this subsection (5)(c), the prosecuting attorney shall contact the victim regarding expungement if notification is required pursuant to part 4.1 of title 24.

(d) If neither the prosecuting attorney nor a victim files an objection within thirty-five days after the filing of the report or notice pursuant to subsection (5)(c) of this section, the court shall order all records in the juvenile delinquency case in the custody of the court, and any records related to the case and charges in the custody of any other agency, person, company, or organization, expunged.

(e) If the prosecuting attorney or a victim files an objection within thirty-five days after the filing of the report or notice pursuant to subsection (5)(c) of this section, the court shall schedule a hearing on the issue of expungement. The court shall notify all objecting parties of the hearing date. The hearing must be set at least thirty-five days after the date the court sends notice of the hearing.

(e.5) If the offense for which the records are eligible for expungement requires the juvenile to register pursuant to section 16-22-103 and the court has not already issued a notice pursuant to section 16-22-113 (1.3)(b), upon receipt of the report from the supervising agency pursuant to subsection (5)(c) of this section, the court shall issue a notice pursuant to section 16-22-113 (1.3)(b) and this subsection (5)(e.5), and the victim and prosecution have sixty-three days from the issuance of that notice to file an objection to expungement or the discontinuation of registration. All other requirements of subsections (5)(d), (5)(e), (5)(f), and (5)(g) of this section apply to the expungement. The provisions of section 16-22-113 (1.3) apply to the issue of discontinuing registration. The court shall consider both issues at the same hearing. If the court has not already ordered that the juvenile may discontinue registration pursuant to section 16-22-113, the court shall enter an order granting expungement and discontinuing the registration requirement, denying expungement and discontinuing the registration requirement, or denying expungement and continuing the registration requirement.

(f) If a hearing is scheduled pursuant to subsection (5)(e) of this section, the court shall send notice to the last known address of the juvenile notifying the juvenile of the date of the hearing and of the juveniles right to appear at the hearing and to present evidence to the court in writing prior to the hearing and in person at the hearing. The notice must indicate that, at the hearing, the court will consider whether the juvenile has been rehabilitated and whether expungement is in the best interest of the juvenile and the community. The juvenile is not required to appear at the hearing.

(g) At a hearing held pursuant to this subsection (5), the court shall order all records of the case in the custody of the court, and any records related to the case or charges in the custody of any other agency, person, company, or organization, expunged if the court makes written findings that:

(I) The rehabilitation of the juvenile has been attained to the satisfaction of the court; and

(II) The expungement is in the best interest of the juvenile and the community.

(h) The court shall, starting on November 1, 2019, and each November 1 thereafter, review all juvenile delinquency court files during the two previous years that resulted in participation in diversion, a deferred adjudication, or an informal adjustment; a sentence for a class 1 misdemeanor offense, any drug felony offense, or a misdemeanor offense involving domestic violence as defined in section 18-6-800.3; or a felony offense that did not constitute unlawful sexual behavior as defined in section 16-22-102 (9), was not a crime of violence as described in section 18-1.3-406, and was not a class 1 or class 2 felony. The court shall send the notice required for all records eligible for a notice pursuant to this subsection (5) if the notice was not previously sent and an expungement order was not previously made. After the notice is sent, the provisions of subsections (5)(b) to (5)(g) of this section apply.

(i) With the victims consent, or if there is no named victim, the prosecuting attorney may agree at the time of a plea that there will be no objection to expungement upon the completion of the juveniles sentence. In such a case, the court shall order all records of the case in the custody of the court, and any records related to the case or charges in the custody of any other agency, person, company, or organization, expunged upon completion of the juveniles sentence. A hearing is not required.

(j) A juvenile who was adjudicated as a mandatory sentence offender pursuant to section 19-2.5-1125 (1) or as a repeat juvenile offender pursuant to section 19-2.5-1125 (2) is not eligible for expungement pursuant to this subsection (5) but may petition for expungement pursuant to subsection (6)(e) of this section.

 

(6) (a) A person may petition the juvenile court to expunge records in a closed case pursuant to subsection (4) of this section if the records are otherwise eligible for expungement, have not been expunged by the court, and a proceeding concerning a felony, misdemeanor, or delinquency action is not pending against the petitioner. A filing fee, notarization, or other formalities are not required. If the court determines the records are eligible for expungement pursuant to the requirements of subsection (4) of this section, the court shall grant the petition to expunge without a hearing and shall issue an order pursuant to subsection (4) of this section.

(b) A person may petition the juvenile court to expunge records in a closed case pursuant to subsection (5) of this section if the records are otherwise eligible for expungement, have not been expunged by the court, and a proceeding concerning a felony, misdemeanor, or delinquency action is not pending against the petitioner. A filing fee, notarization, or other formalities are not required. If the records are eligible for expungement pursuant to subsection (5) of this section, the court shall request a report from the agency supervising the juvenile or issue a notice pursuant to subsection (5)(c) of this section, and the provisions of subsection (5) of this section apply.

(c) A person may petition the juvenile court to expunge records related to a law enforcement contact that did not result in referral to another agency after one year has passed since the law enforcement contact and a proceeding concerning a felony, misdemeanor, or delinquency action is not pending against the petitioner. A filing fee, notarization, or other formalities are not required. If the records are eligible for expungement pursuant to subsection (5) of this section, the court shall issue a notice to the district attorney that the records will be expunged if no objection is received, and the provisions of subsection (5) of this section apply.

(d) A person may petition the juvenile court to expunge records in a closed case pursuant to subsection (5) of this section if the person was previously denied an expungement order for those same records pursuant to subsection (5) of this section and at least twelve months have passed since the date of the original denial order, the petitioner provides new information not previously considered by the prior reviewing court, and a proceeding concerning a felony, misdemeanor, or delinquency action is not pending against the petitioner. The court shall schedule a hearing and notify the prosecuting attorney of the hearing date. The court shall set the hearing at least thirty-five days after the court sends the notice of the hearing. All other provisions of subsection (5) of this section apply.

(e) A juvenile who does not qualify for expungement pursuant to subsection (4) or (5) of this section, including a mandatory sentence offender pursuant to section 19-2.5-1125 (1) or a repeat offender pursuant to section 19-2.5-1125 (2), and is not otherwise ineligible for expungement pursuant to subsection (8) of this section and does not have a proceeding concerning a felony, misdemeanor, or delinquency action pending against himself or herself, may petition the court to request expungement of the juveniles record thirty-six months after the date of the petitioners unconditional release from the juvenile sentence. A filing fee, notarization, or other formalities are not required. The court shall schedule a hearing, and subsections (5)(e), (5)(e.5), (5)(f), and (5)(g) of this section apply.

(7) Unless otherwise stated in the applicable section, a person may file a petition with the court for expungement of his or her record pursuant to subsections (4), (5), and (6) of this section only once during a twelve-month period.

(8) Notwithstanding subsections (4), (5), and (6) of this section, a court shall not expunge the record of a person who is:

(a) Adjudicated as an aggravated juvenile offender pursuant to section 19-2.5-1125 (4) or as a violent juvenile offender pursuant to section 19-2.5-1125 (3);

(b) Adjudicated of homicide and related offenses pursuant to part 1 of article 3 of title 18;

(c) Adjudicated for a felony offense involving unlawful sexual behavior as described in section 16-22-102 (9); or

(d) Charged, adjudicated, or convicted of any offense or infraction pursuant to title 42.

(9) Municipal court records.

(a) Municipal court records are expunged pursuant to section 13-10-115.5.

(b) If municipal court records have not been expunged within seventy days from the end of the case pursuant to section 13-10-115.5, an individual may petition the juvenile court in the judicial district where the municipality is located to expunge records of a municipal case brought against a juvenile. Expungement proceedings pursuant to this subsection (9) must be initiated by the filing of a petition requesting an order of expungement. A filing fee, notarization, or other formalities are not required. If the petition is not granted without a hearing, the court shall set a date for a hearing on the petition for expungement and shall notify the appropriate prosecuting attorney.

(10) Upon the entry of an order expunging a record pursuant to this section, the court shall order, in writing, the expungement of all case records in the custody of the court and any records related to the case and charges in the custody of any other agency, person, company, or organization. The court may order expunged any records, but, at a minimum, the following records must be expunged pursuant to every expungement order:

(a) All court records;

(b) All records retained within the office of the prosecuting attorney;

(c) All probation and parole records;

(d) All law enforcement records;

(e) All department of human services records;

(f) All division of youth services records;

(g) All department of corrections records; and

(h) References to the criminal case or charge contained in the school records.

 

(11) (a) When an expungement order is issued pursuant to this section, the court shall send a copy of the order to the juvenile, the juveniles last attorney of record, the prosecuting attorney, any law enforcement agency that investigated the case, the state court administrators office, and the Colorado bureau of investigation directing the entity to expunge its records within thirty-five days after the receipt of the order.

(b) The court shall send a copy of an expungement order to each of the following, directing the entity to expunge the records in its custody as soon as practicable but no later than ninety days after the receipt of the order:

(I) The probation office if the juvenile was placed on probation at any point during the case;

(II) The division of youth services if the juvenile was detained in a facility operated by the division, committed to the custody of the division, or screened through the Colorado youth detention continuum at any point during the case;

(III) Any county department of human or social services through which the juvenile received services at any point during the juveniles case; and

(IV) Any other agency, person, company, or organization named in the order if the court is aware that the entity has records related to the case in its possession.

(c) Each entity described in this subsection (11) shall expunge the records in its custody as directed by the order.

(d) The person who is the subject of records expunged pursuant to this section may petition the court to permit inspection of the records held by persons named in the order, and the court may so order.

(12) Any agency, person, company, or organization that violates this section and knew that the records in question were subject to an expungement order may be subject to criminal and civil contempt of court and may be punished by a fine.

(13) Employers; educational institutions; landlords; and state and local government agencies, officials, and employees shall not, in any application or interview or in any other way, require an applicant to disclose any information contained in expunged records. In answer to any question concerning arrest or juvenile and criminal records information that has been expunged, an applicant need not include a reference to or information concerning the expunged information and may state that no record exists. An application may not be denied solely because of the applicants refusal to disclose records or information that has been expunged.

(14) Nothing in this section authorizes the physical destruction of any juvenile or criminal justice record.

History

History.
Source: L. 96: Entire part added with relocations, p. 1163, 6, effective January 1, 1997; (9) added, p. 1588, 18, effective January 1, 1997. L. 98: (7)(d) added and (9) repealed, p. 399, 4, 5, effective April 21. L. 2002: (7)(d) amended, p. 1187, 24, effective July 1; (7)(b) amended, p. 1523, 223, effective October 1. L. 2009: (7)(c) amended,(HB 09-1044), ch. 19, p. 96, 1, effective September 1. L. 2012: (5)(d) and (6)(a.5) added,(HB 12-1151), ch. 174, p. 623, 6, effective August 8. L. 2013: (2)(a), (3), (5)(c)(I), (6), and (7) amended and (5)(a.5) and (10) added,(HB 13-1082), ch. 238, p. 1155, 1, effective August 7. L. 2014: (5)(d)(I) amended,(HB 14-1273), ch. 282, p. 1157, 21, effective July 1. L. 2016: (5)(c)(II.5) added and (7)(e) repealed,(SB 16-065), ch. 277, p. 1143, 3, effective July 1. L. 2017: Entire section R&RE,(HB 17-1204), ch. 206, p. 775, 2, effective November 1. L. 2019: (1)(c) and (5)(e.5) added, (4)(a)(II), (4)(a)(III), (4)(b), IP(5)(a), (5)(a)(I), (5)(a)(II), (5)(c), (5)(d), (5)(e), (6)(b), (6)(c), (6)(e), (10)(e), and (11) amended, (5)(a)(III) and (5)(b) repealed, and (9) R&RE,(HB 19-1335), ch. 304, p. 2780, 1, effective May 28. L. 2020: (11)(b)(III) amended,(HB 20-1402), ch. 216, p. 1048, 36, effective June 30. L. 2021: (5)(j), (6)(e), IP(8), and (8)(a) amended,(SB 21-059), ch. 136, p. 729, 71, effective October 1.

Annotations

Editors note: This section was formerly numbered as 19-2-902. The said section 19-2-902 was contained in a title that was repealed and reenacted in 1987. Provisions of that section, as it existed in 1987, are similar to those contained in 19-1-111 as said section existed in 1986, the year prior to the repeal and reenactment of this title.

Cross references:

For the legislative declaration contained in the 2002 act amending subsection (7)(b), see section 1 of chapter 318, Session Laws of Colorado 2002.

ANNOTATION

Law reviews. For article, Review of New Legislation Relating to Criminal Law, see 11 Colo. Law. 2148 (1982).

Annotators note. The following annotations include cases decided under former provisions similar to this section.

The disposition of arrest records is subject to legislative control. Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972).

The general assembly did not intend that the limitation on expungement set forth in subsection (7)(d) apply to a person who has successfully completed a deferred adjudication. C.B. v. People, 122 P.3d 1065 (Colo. App. 2005).

The Colorado Childrens Code does not supply definition of interested party. In re People in Interest of C.P., 34 Colo. App. 54, 524 P.2d 316 (1974).

C.R.C.P. 24 has no application in proceeding under the Colorado Childrens Code, as the code itself expressly contemplates the active participation of interested parties. People in Interest of M.D.C.M., 34 Colo. App. 91, 522 P.2d 1234 (1974).

Since 24-72-308 concerns the sealing of criminal records and juvenile delinquency proceedings are noncriminal in nature, the trial court should have proceeded under the expungement provisions set forth in this section when considering a petition to seal arrest and criminal records relating to a juvenile delinquency case. C.B. v. People, 122 P.3d 1065 (Colo. App. 2005).