COCODE

24-72-706. Sealing of criminal conviction and criminal justice records - processing fee.

Statute text

(1) Sealing of conviction records. (a) Subject to the limitations described in subsection (2) of this section, a defendant may file a motion in the criminal case in the court in which any conviction records pertaining to the defendant are located for the sealing of the conviction records, except basic identification information, if the motion is filed within the time frame described in subsection (1)(b) of this section and proper notice is given to the district attorney.

(b) (I) If the offense is civil infraction, a petty offense, or a drug petty offense, the motion may be filed one year after the later of the date of the final disposition of all proceedings against the defendant or the release of the defendant from supervision concerning a conviction.

(I.5) If the offense is a second or subsequent conviction for a violation of section 18-13-122 (3), the motion may be filed one year after the date of the second or subsequent conviction, and the court shall order that the motion be granted 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).

(II) If the offense is a class 2 or class 3 misdemeanor, any drug misdemeanor, or a level 4 drug felony for a conviction pursuant to section 18-18-403.5 (2.5), the motion may be filed two 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 criminal conviction.

(III) If the offense is a class 4, class 5, or class 6 felony, a level 3 or level 4 drug felony except a level 4 drug felony for a conviction pursuant to section 18-18-403.5 (2.5), or a class 1 misdemeanor, the motion may be filed 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 criminal conviction.

(III.3) Notwithstanding subsection (1)(b)(I) of this section, if the offense is a first conviction for intentional misrepresentation of entitlement to an assistance animal as described in section 18-13-107.3 (1), the defendant may file a motion three years after the conviction and the court shall order the record sealed if the defendant does not have a subsequent conviction for intentional misrepresentation of entitlement to an assistance animal.

(III.5) If the offense is a first conviction for intentional misrepresentation of a service animal, as described in section 18-13-107.7 (1), the defendant may file a motion three years after the conviction, and the court shall order the record sealed if the defendant does not have a subsequent conviction for intentional misrepresentation of a service animal.

(IV) Subject to the limitations in subsection (2) of this section, for all other offenses, the petition may be filed 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 criminal conviction.

(c) A motion to seal conviction records pursuant to this section shall include a listing of each custodian of the records to whom the sealing order is directed and any information that accurately and completely identifies the records to be sealed. The defendant shall submit a verified copy of the defendant's criminal history, current through at least the twentieth day before the date of the filing of the petition to the court, along with the motion at the time of filing, but in no event later than the tenth day after the motion is filed. The defendant shall pay for his or her criminal history record.

(d) Upon the filing of any motion pursuant to this section, the court shall initially review the motion and determine whether there are grounds pursuant to this section to proceed to a hearing on the motion. If the court determines that the motion on its face is insufficient or if the court determines that, after taking judicial notice of matters outside the motion, the defendant is not entitled to relief pursuant to this section, the court shall enter an order denying the motion and mail a copy of the order to the defendant. The court's order shall specify the reasons for the denial of the motion. If the court determines that the motion is sufficient on its face and that no other grounds exist at that time for the court to deny the motion pursuant to this section, the court shall proceed pursuant to the provisions of this section.

(e) Conviction records may not be sealed if the defendant still owes restitution, unless the court that entered the order for restitution vacated the order.

(f) (I) If a motion is filed for the sealing of a civil infraction, a petty offense, a petty drug offense, or, notwithstanding any provision of this part 7 to the contrary, an offense for the possession of marijuana, the court shall order that the records be sealed after the motion is filed and the criminal history filed with the court documents to the court that the defendant has not been convicted of an offense since the date of the final disposition of all proceedings against the defendant or since the date of the defendant's release from supervision, whichever is later.

(II) If a motion is filed for the sealing of a class 2 or class 3 misdemeanor or any drug misdemeanor, the defendant shall provide notice of the motion to the district attorney. The district attorney shall determine whether to object to the motion after considering the factors in subsection (1)(g) of this section. If the district attorney does not object and the offense is not a crime enumerated in section 24-4.1-302 (1), the court shall order that the records be sealed if the criminal history filed with the court documents to the court that the defendant has not been convicted of a criminal offense since the date of the final disposition of all criminal proceedings against him or her or since the date of the defendant's release from supervision, whichever is later. The district attorney shall advise the court of a victim's objection and request for hearing when known. If the district attorney objects to the motion or the offense is a crime enumerated in section 24-4.1-302 (1) and the victim requests a hearing, the court shall set the matter for hearing. The court may only seal the records if the criminal history filed with the motion as required by subsection (1)(c) of this section documents to the court that the defendant has not been convicted of a criminal offense since the date of the final disposition of all criminal proceedings against him or her or since the date of the defendant's release from supervision, whichever is later. The court shall decide the motion after considering the factors in subsection (1)(g) of this section.

(III) If a motion is filed for the sealing of a class 4, class 5, or class 6 felony, a level 3 or level 4 drug felony, or a class 1 misdemeanor, the defendant shall provide notice of the motion to the district attorney. The district attorney shall determine whether to object to the motion after considering the factors in subsection (1)(g) of this section. If the district attorney does not object and the offense is not a crime enumerated in section 24-4.1-302 (1), the court may grant the motion with or without the benefit of a hearing. The district attorney shall advise the court of a victim's objection and request for hearing when known. If the district attorney objects to the motion or the offense is a crime enumerated in section 24-4.1-302 (1) and the victim requests a hearing, the court shall set the matter for hearing. The court may only seal the records if the criminal history filed with the motion as required by subsection (1)(c) of this section documents to the court that the defendant has not been convicted of a criminal offense since the date of the final disposition of all criminal proceedings against him or her or since the date of the defendant's release from supervision, whichever is later. The court shall decide the motion after considering the position of the district attorney and the factors in subsection (1)(g) of this section.

(IV) If a motion is filed for any other offense, the defendant shall provide notice of the petition to the district attorney. The district attorney shall determine whether to object to the motion after considering the factors in subsection (1)(g) of this section. The court shall set any motion filed for a hearing. The court may only seal the records if the criminal history filed with the motion as required by subsection (1)(c) of this section documents to the court that the defendant has not been convicted of a criminal offense since the date of the final disposition of all criminal proceedings against him or her or since the date of the defendant's release from supervision, whichever is later. The court shall decide the motion after consideration of the position of the district attorney and the factors in subsection (1)(g) of this section.

(f.5) (I) Notwithstanding any provision of this part 7 to the contrary, a motion filed for the sealing of conviction records for an offense that was unlawful at the time of conviction, but is no longer unlawful pursuant to section 18-18-434, may be filed at any time. The court shall order the records sealed unless the district attorney objects pursuant to subsection (1)(f.5)(II) of this section.

(II) If a motion is filed for the sealing of an offense described in this subsection (1)(f.5), the defendant shall provide notice of the motion to the district attorney, who may object. The district attorney shall determine whether to object to the motion based on whether the underlying conviction for an offense is no longer unlawful pursuant to section 18-18-434. The district attorney shall determine whether to object and provide notice to the court within forty-two days of receipt of the motion. If the district attorney objects to the motion, the court shall set the matter for hearing and the burden is on the defendant to show by a preponderance of the evidence that the underlying factual basis of the conviction sought to be sealed is no longer unlawful pursuant to section 18-18-434.

(III) (A) A defendant who files a motion pursuant to this subsection (1)(f.5) must not be charged fees or costs.

(B) Notwithstanding subsection (1)(c) of this section, a defendant who files a motion pursuant to this subsection (1)(f.5) is not required to submit a verified copy of the defendant's criminal history with a filed motion.

(g) At any hearing to determine whether records may be sealed, except for basic identification information, the court must determine that the harm to the privacy of the defendant or the dangers of unwarranted, adverse consequences to the defendant outweigh the public interest in retaining public access to the conviction records. In making this determination, the court shall, at a minimum, consider the severity of the offense that is the basis of the conviction records sought to be sealed, the criminal history of the defendant, the number of convictions and dates of the convictions for which the defendant is seeking to have the records sealed, and the need for the government agency to retain the records.

(h) A defendant who files a motion to seal criminal justice records pursuant to this section shall pay a processing fee of sixty-five dollars to cover the actual costs related to the sealing of the criminal justice records. The defendant shall pay to the Colorado bureau of investigation any costs related to the sealing of the defendant's criminal justice records in the custody of the bureau. The court shall waive the processing fee upon a determination that:

(I) The defendant is indigent;

(II) The defendant's records should have been automatically sealed pursuant to section 13-3-117, 24-72-704, or 24-72-705; or

(III) The defendant filed a motion to seal pursuant to subsection (1)(f.5) of this section.

(i) The court shall determine eligibility of a drug offense committed before October 1, 2013, by the classification of the offense at the time of considering the record sealing.

(2) (a) The provisions of this section do not apply to records pertaining to:

(I) A class 1 or class 2 misdemeanor traffic offense;

(II) A class A or class B traffic infraction;

(III) A conviction for a violation of section 42-4-1301 (1) or (2);

(IV) A conviction for an offense for which the underlying factual basis involved unlawful sexual behavior as defined in section 16-22-102 (9);

(V) A conviction for a violation of section 18-6-401; or

(VI) A conviction that is subject to one or more of the following provisions:

(A) Sentences for a crime involving extraordinary aggravating circumstances pursuant to section 18-1.3-401 (8);

(B) A sentence for an extraordinary risk crime pursuant to section 18-1.3-401 (10);

(D) Sentencing for a crime pertaining to a special offender pursuant to section 18-18-407;

(E) Sentencing for a criminal conviction for which the underlying factual basis involves domestic violence as defined in section 18-6-800.3;

(F) Sentencing for a criminal conviction for a sexual offense, pursuant to part 4 of article 3 of title 18;

(G) Sentencing for any crime of violence pursuant to section 18-1.3-406;

(H) Sentencing for a felony crime enumerated in section 24-4.1-302 (1);

(I) Sentencing for a felony offense in violation of section 18-9-202;

(J) Sentencing for an offense classified as a class 1, 2, or 3 felony or a level 1 drug felony pursuant to any section of title 18; except a class 3 felony in violation of section 18-18-106 (8)(a)(II)(B) as it existed prior to July 1, 1992; a class 3 felony in violation of section 18-18-406 (8)(a)(II)(B) as it existed prior to August 11, 2010; or a class 3 felony in violation of section 18-18-406 (6)(a)(II)(B) as it existed prior to October 1, 2013;

(K) Sentencing for an offense in violation of part 1 of article 6 of title 18;

(L) Sentencing for an offense in violation of section 18-5-902 (1);

(M) Sentencing for an offense in violation of section 18-3.5-103 (4), (5), (6), (7), (8), and (9); or

(N) Sentencing for an offense in violation of section 18-7-203.

(b) Notwithstanding the provisions of this section, a misdemeanor offense ineligible pursuant to the provisions of this section or subsection (2)(a) of this section is eligible for sealing pursuant to this section if the district attorney consents to the sealing or if the court finds, by clear and convincing evidence, that the petitioner's need for sealing of the record is significant and substantial, the passage of time is such that the petitioner is no longer a threat to public safety, and the public disclosure of the record is no longer necessary to protect or inform the public.

(3) Applicability. Motions filed pursuant to this section are procedural in nature, and sealing pursuant to this section applies retroactively to all eligible cases.

History

Source: L. 2019: Entire part R&RE, (HB 19-1275), ch. 295, p. 2741, 1, effective August 2. L. 2021: (1)(f)(I) and (2)(a)(VI)(J) amended, (HB 21-1090), ch. 157, p. 902, 6, effective May 20. L. 2022: (1)(b)(II) and (1)(b)(III) amended, (HB 22-1326), ch. 225, p. 1652, 32, effective July 1; (1)(b)(I), (1)(e), (1)(f)(I), and (1)(h) amended, (1)(b)(I.5), (1)(b)(III.3), (1)(b)(III.5), and (1)(i) added, and (2)(c) repealed, (SB 22-099), ch. 276, p. 1992, 13, effective August 10. L. 2023: (1)(f.5) added and (1)(h) amended, (SB 23-290), ch. 249, p. 1421, 38, effective July 1.

Annotations

Editor's note: Section 45 of chapter 249 (SB 23-290), Session Laws of Colorado 2023, provides that the act changing this section applies to offenses committed on or after July 1, 2023.

Annotations

Cross references: For the legislative declaration in HB 22-1326 stating the purpose of, and the provision directing legislative staff agencies to conduct, a post-enactment review pursuant to 2-2-1201 scheduled in 2025, see 1 and 55 of chapter 225, Session Laws of Colorado 2022. To obtain a copy of the review, once completed, go to "Legislative Resources and Requirements" on the Colorado General Assembly's website.