H. Michael Steinberg has over 32 years experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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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

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. Section 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. Section 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

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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.