Vail Law: How can someone have their criminal record sealed? (column)
May 9, 2018
In your callow youth, you made a mistake. And, oops, that little error in judgment resulted in a criminal record which now stalks you like a hungry bear. "What," You wring your hands and plead to the heavens, "t'do?"
First, a little background.
Like most states, Colorado mandates that criminal justice agencies maintain public records of their actions which are open to the public. This could leave a criminal trail even absent a conviction.
Thus, when you, with your unfortunate baggage, go to apply to graduate school, or for a job, or even to find a new apartment, that ill-advised little thing from your past may shadow you. Particularly in this electronic age, your prospective new employer, landlord or admissions committee can find out more about you than you wish. "Ah … sorry … there is no room at the inn, no place in our incoming class, no Dilbert Cube available for you. So sorry."
What's a body to do? This thing dogs you like, well … an angry dog.
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Well, there just might be a simple answer. Applicable in at least some circumstances, Colorado provides for a simple, inexpensive means for zipping up the past. For alleged offenses where the person was not charged, the charges were dismissed, or for which the person was acquitted, there is … plop-plop, fizz-fizz … relief.
Snuffing the trail
For a mere pittance — in this case a $65 filing fee — one may make an informal motion (made orally at the time of the dismissal or acquittal or in writing at any time thereafter) whereby request is make to erase the past. If the court determines that the person requesting sealing of the records is eligible, then the court will approve sealing of the file and — voila — that nasty cloud that's been following you around like Pig-Pen's dusty veil — poof — is gone. And, as remarkable as that may seem, except for the paper shuffling that follows, that's it.
But, alas, life is not all Skittles and beer.
If the motion to seal falls under the Colorado Victim's Rights Act (involving such nasty bits as domestic violence), then a hearing must be noticed so that the victim may be apprised of the goings-on and may attend the hearing in order to be heard. At the hearing, the court will consider such things as the parties' right to privacy but, ultimately, the court will judge whether the harm to the moving party outweighs the potential public interest in the records remaining open.
If sealing is ordered, the Court provides a copy of its order to the Colorado Bureau of Investigation and the moving party bears the CBI's costs to seal the records in its custody (currently $28). The court will also provide a copy to each custodian where other records may be found. While law enforcement and criminal justice agencies will retain access to the files (like a diamond, some things are forever), if any outside party comes around to snoop into your past, what will bounce back to their inquiry is a curt reply that "no such records have been found."
More hoops to clear?
In certain circumstances, there may be other hoops to jump through. If one is applying to practice law, for example, then the Board of Law Examiners reserves the right to nose around into the moral and ethical qualifications of an applicant and the applicant has no right to conceal his sordid past. Another instance involves the Department of Education, which may require licensed educators or applicants for an educator's license to notify the department of a pending petition to seal. The department then has the right to look into the facts that gave rise to the offense.
Because of the potential lifelong implications of a criminal footprint, the limited circumstances under which one may seal a record, and the ever-shifting laws that apply to sealing, there can be no guarantees. Facts, in the context of applicable law, largely direct the outcome. What is certain, though, is one should ask. If you have ever been accused of a crime, to matter how trivial it may seem, then you should at least look into what, if anything, can be done to ease the lingering pain.
Particularly if your past has haunted you, then it might be wise to explore if and how you may be able to legitimately cover your footprints.
Not to place too fine a point on it, but not all records can be sealed and sometimes what can or cannot be sealed seems to make little sense. What is certain, though, is that those callow days of youth can follow you. Stuff, in fact, has consequences and in all cases, the best advice is to think before you act. If, however, you have sadly acted with less than full consideration, a path may be open to rescue you from unnecessary and potentially nasty repercussions. All things considered, it may be a path worth your attention to explore.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com.