mt:Include module="Global Settings" /> Colorado Sealinmg Expungement Law Archives: Colorado Criminal Lawyer Blog

Recently in Colorado Sealinmg Expungement Law Category

November 29, 2011

Colorado Criminal Law: Even Where the Juvenile - Defendant Wins his Case - Petitions to Seal (Expunge) May Be Denied Under Colorado's Law's Balancing Test

| Share


In the recent juvenile case of F.M. v. The People of the State of Colorado, the COLORADO COURT OF APPEALS upheld a Colorado Adams County District Court Judge's decision to deny F.M.'s Petition to Seal DESPITE A NOT GUILTY VERDICT

These are the Undisputed Facts in the Case

In the underlying criminal case, F.M. was charged with four counts of felony menacing after he mailed an envelope to his supervisor containing flour. When it spilled out, a coworker called the police, who summoned a hazmat team. F.M. was acquitted.

In 2006, F.M. brought the prior action to seal the arrest and criminal records concerning these charges, based on his acquittal. The prosecution objected. Applying the statutory balancing test, the district court held that the public interest outweighed F.M.'s privacy interest, declined to seal the records, and dismissed the action

Statutory Interpretation

Because F.M., a juvenile, was acquitted - that is - found NOT GUILTY - of the underlying charges, he could seek to seal related arrest and criminal records. § 24-72- 308(1)(a)(I), C.R.S. 2011.

The district court may do so if it finds that either harm to the petitioner's privacy or the danger of unwarranted adverse consequences to the petitioner outweighs the public interest in leaving the records unsealed. § 24-72-308(1)(c), C.R.S. 2011.

Section 24-72-308 is comprehensive and the statutory remedies are exclusive for those persons whose records come within its purview.

Colorado's Record Sealing Law 24-72-308(1)(c), Provides:

24-72-308. Sealing of arrest and criminal records other than convictions.

(1) (c) After the hearing described in subparagraph (II) of paragraph (b) of this subsection (1) is conducted and if 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, except basic identification information, to be sealed. Any order entered pursuant to this paragraph (c) shall be directed to every custodian who may have custody of any part of the arrest and criminal records information which is the subject of the order. Whenever a court enters an order sealing criminal records pursuant to this paragraph (c), the petitioner shall provide the Colorado bureau of investigation and every custodian of such records with a copy of such order. The

What is critical here - is the language:

(1) (c) After the hearing described in subparagraph (II) of paragraph (b) of this subsection (1) is conducted and if 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, except basic identification information, to be sealed
.

H. Michael's Take

What is to be "taken away" from this case is the important point that petitions to seal and expungements are not guaranteed. If the Court - at the hearing on the Petition to Seal - does not find that the harm to the privacy of the petitioner or dangers of unwarranted adverse consequences to the petitioner DO NOT outweigh the public interest in retaining the records, the court may order such records to be retained as PUBLIC.

Thus - be warned - even if the Defendant is found NOT GUILTY at trial - the case may remain on his - her record forever. Lawyers need to take the Court's balancing test seriously - and they need to prepare for the final hearing - and be ready to persuade the Judge to rule in the Petitioner's favor.

Posted by H. Michael Steinberg | | Email This Post

September 4, 2011

2011 New Law Modifies and Expands Reach of Conditions of Mandatory Restraining Orders in Colorado Criminal Cases - 18-1-1001 CRS

| Share


A New Law Signed by the Colorado Governor in June of this year -- mandates certain conditions of bond be expanded to cover a number of new crimes. Previously, these conditions of bond were applied primarily in Colorado Domestic Violation Cases -- the New Law expands the use of these conditions to the crimes listed below.. It is worth noting the importance of this new law as greatly increasing the costs of and difficulty in complying with a pending - UNPROVEN - Colorado criminal case.

Here is a Summary of the new Law / Legislation

The bill expands to all crimes subject to the Victims' Rights Act the courts' discretion to add
the following restrictions, currently only available in domestic violence cases, to mandatory
protection orders issued to defendants at the time of arraignment or first court appearance:

• to stay away from the victim's home and other locations where the victim may be found;
• to not have contact or direct or indirect communication with the victim;
• to not possess or control firearms or other weapons;
• to not possess or consume alcohol or controlled substances; and
• other orders deemed appropriate to protect the victim's safety.

Under current law, a mandatory protection order is issued by the court in a criminal
proceeding. The order restrains a person from harassing, molesting, intimidating, retaliating against, or tampering with the defendant or any witness to the acts charged. The order stays in effect until the defendant is acquitted or until the defendant is convicted and completes his or her sentence.

Under existing law, a court may issue a protective order in domestic violence cases that restrict the defendant from being present at particular locations or contacting the victim. House Bill 11-1267 expands this to sexual assaults and other crimes that are subject to the Victims' Rights Act.


Crimes Covered by the Colorado Victims' Rights Act

Murder in the 1st and 2nddegree
Sexual assault by one in a position of trust
Careless driving
Manslaughter
Sexual assault on a client by a psychotherapist
Stalking
Criminally negligent homicide
Robbery
Failure to stop at the scene of an accident
Vehicular homicide
Aggravated robbery
Any criminal attempt, any conspiracy, any criminal solicitation, and any accessory to crime
Assault in the 1st, 2nd, and 3rd degree
Aggravated robbery of controlled substances
Retaliation against a witness or victim
Vehicular assault
Incest
Intimidation of a witness or victim
Menacing
Aggravated incest
Aggravated intimidation of a witness or victim
Kidnaping in the 1st and 2nd degree
Child abuse Tampering with a witness or victim
Sexual assault
Sexual exploitation of children
Indecent exposure
Sexual assault in the 1st, 2nd, and 3rd degree
Crimes against at-risk adults or at-risk juveniles
Violation of a protection order against a person charged with certain sex crimes (4 classes)
Unlawful sexual contact Domestic violence (3 classes)
Sexual assault on a child
Bias-motivated crimes

A violation of a mandatory protection order of the type covered by the bill is a class 1
misdemeanor, the fine for which ranges from $500 to $5,000.

Although the court already exercises broad authority when ordering defendants to refrain from certain activities, expanding the restrictions that can be added to include all victims' rights crimes will increase the number of mandatory protective orders issued.


18-1-1001. Protection order against defendant.

(The changes TO THE SECTION - 3 -are CAPITALIZED)

(3) Nothing in this section shall preclude the defendant from applying to the court at any
time for modification or dismissal of the protection order issued pursuant to this section or the district attorney from applying to the court at any time for further orders, additional provisions under the protection order, or modification or dismissal of the same.

The trial court shall retain jurisdiction to enforce, modify, or dismiss the protection order until final disposition of the action. Upon motion of the district attorney or on the court's OWN motion to protect FOR THE PROTECTION OF the alleged victim OR WITNESS, the court may, in cases involving domestic violence as defined in section 18-6-800.3 (1) AND CASES INVOLVING CRIMES LISTED IN SECTION 24-4.1-302, C.R.S., EXCEPT THOSE LISTED IN PARAGRAPHS (cc.5) AND (cc.6) OF SUBSECTION (1) OF THAT SECTION, enter any of the following further orders against the defendant:

(a) An order to vacate or stay away from the home of the ALLEGED victim OR WITNESS and to stay away from any other location where the victim OR WITNESS is likely to be found;

(b) An order to refrain from contact or direct or indirect communication with the ALLEGED victim OR WITNESS;

(e) Any other order the court deems appropriate to protect the safety of the alleged victim OR WITNESS

Posted by H. Michael Steinberg | | Email This Post

August 21, 2011

Congress Fails Opportunity to Correct Criminal Background Check Errors - Bill Dies

| Share

I receive, sometimes on a weekly basis, calls from individuals whose criminal cases have been dismissed as a result of either plea bargaining, tactical courtroom work, pre-filing negotiation or other representation, or acquittals after trial, ... but whose criminal histories - on the national data base know as the NCIC System, ... fail to reflect the dismissal.

These individuals are often denied employment, housing, financial assistance and many other opportunities to succeed in their lives and find themselves in the untenable situation of trying to explain why the entry on their "rap sheet" is incorrect.

In 2010, in a move to correct for these kinds of errors, Congress introduced a Bill that would have required the FBI to fill in gaps in criminal records database.

The Bill, entitled the 2010 Fairness and Accuracy in Employment Background Checks Act would require the attorney general to find out from court offices, including those in state and local jurisdictions, the outcome of arrests whenever an employer requests a background check, and update that record in the National Crime Information Center database.

In cases where the attorney general discovers an arrest was dismissed in court, he would have 10 days to update the record before responding to the employer's request.

Employers often consult the NCIC database to conduct background checks on individuals applying for jobs in law enforcement, homeland security or organizations where they'd be working with vulnerable populations, such as children and the elderly. Typically only public sector entities can request FBI background checks, though certain private sector companies -- such as those supporting federal homeland security efforts -- can as well.

Bobby Scott, D-Va., chairman of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security, introduced the bill on May 13 in response to a June 2006 report from the attorney general that showed nearly 50 percent of criminal records maintained in the NCIC database failed to note court decisions to dismiss arrests.

The legislation would have given job applicants the opportunity to obtain a copy of records provided to a potential employer and challenge their accuracy and completeness. If the records were challenged, the attorney general would have 30 days to complete an investigation, make changes or deletions, and report those changes to the applicant and the employer.

The bill...

The Fairness and Accuracy in Employment Background Checks Act of 2010 - which would have required the Attorney General to:

(1) establish and enforce procedures to ensure the prompt release of accurate federal criminal background records and information exchanged for employment-related purposes;

and

(2) report to Congress on the exchange of records or information for employment-related purposes under this Act and on all federal statutes, regulations, and policies providing employment restrictions and disqualifications based on criminal records.

.... was introduced during the 111th Congress. (2009 -2010) This bill never became law.

Sessions of Congress last two years, and at the end of each session all proposed bills and resolutions that haven't passed are cleared from the books. However, members can and often do reintroduce bills that did not come up for debate under a new number in the next session.

Contact your Congress man or woman and press for the reintroduction of this bill - many lives will be helped if this bill can make its way to the President's desk. H. Michael

Posted by H. Michael Steinberg | | Email This Post

« Colorado Right to a Jury Trial | Main Index | Archives | Colorado Sex Offender Laws »