By H. Michael Steinberg Colorado Criminal Defense Lawyer for Juvenile Crimes
In the Colorado 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.
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
Because F.M., a juvenile, was acquitted – that is – he was found NOT GUILTY after a trial on the underlying charges, he could seek to seal related arrest and criminal records. Section 24-72- 308(1)(a)(I), 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.
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.
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.