Current through Chapter 5 of the 2024 Legislative Session
Section 24-72-703 - Sealing of records - general provisions - order applicability - discovery and advisements(1)Applicability. This section applies to the sealing of arrest and criminal justice records pursuant to sections 24-72-704 to 24-72-710. Subsections (2), (4), (5), (6), (7), and (12) of this section apply to the automatic sealing of criminal justice records pursuant to section 13-3-117.(2)Effect of a sealing order.(a)(I) An order sealing arrest or other criminal records does not deny access to the criminal records of a petitioner or defendant by any court, law enforcement agency, criminal justice agency, prosecuting attorney, party, or governmental agency required by statute or rules or regulations to conduct a criminal history record check on an individual, including for the purpose of a prosecutor complying with prosecutorial duties under rule 16 of the Colorado rules of criminal procedure to disclose criminal justice records in criminal proceedings.(II) An order sealing conviction records does not vacate a conviction.(III) A record sealed pursuant to this article 72 and section 13-3-117 may be used by a criminal justice agency, law enforcement agency, court, or prosecuting attorney for any lawful purpose relating to the investigation or prosecution of any case, including any subsequent case that is filed against the petitioner or defendant; for collecting fines, court costs, late fees, or other fees; or for any other lawful purpose within the scope of the agency's, court's, or attorney's duties. A party or agency required by law to conduct a criminal history record check is authorized to use any sealed conviction for the lawful purpose for which the criminal history record check is required by law.(IV) Criminal justice information and criminal justice records in the possession of a criminal justice agency may be shared with any other criminal justice agency when an inquiry concerning the arrest and criminal justice information or records is made.(V) If a defendant is convicted of a new criminal offense after an order sealing conviction records is entered, the court shall order the conviction records to be unsealed.(VI) The sealing of a record pursuant to this article 72 and section 13-3-117 does not preclude a court's jurisdiction over any subsequently filed motion, including a motion to amend the record, a postconviction relief motion or petition, or any other motion concerning a sealed conviction record.(VII) A defendant whose record has been sealed or expunged may access information contained in the sealed record from the Colorado bureau of investigation without a court order. In response to an inquiry from the defendant, the Colorado bureau of investigation shall reply both pursuant to subsection (2)(b) of this section and with the information and records underlying the sealed record.(VIII) A prosecuting attorney's access to records pursuant to this subsection (2) does not require a court order.(b) Except as otherwise provided in subsection (2)(a)(I) of this section, upon the entry of an order to seal the criminal records, the defendant may properly reply, upon an inquiry into the matter, that public criminal records do not exist with respect to the petitioner or defendant. Upon an inquiry into a sealed record, a criminal justice agency shall reply that a public criminal record does not exist with respect to the defendant who is the subject of the sealed record.(c) The person who is the subject of the records and the prosecuting attorney may inspect the records included in an order sealing criminal records without a court order and only for the purposes permitted by law.(d)(I) Except as otherwise provided in subsection (2)(a)(I) of this section, employers, state and local government agencies, officials, landlords, employees, and any other entity shall not require an applicant to disclose any information contained in sealed criminal justice records in any application or interview or in any other way. An applicant does not need to include a reference to or information concerning the sealed records in answer to any question concerning records that have been sealed and may state that the applicant has not been criminally convicted. An application may not be denied solely because of the applicant's refusal to disclose records that have been sealed.(II) Subsection (2)(d)(I) of this section does not preclude the bar committee of the Colorado state board of law examiners from making further inquiries into the fact of a conviction that comes to the attention of the bar committee through other means. The bar committee of the Colorado state board of law examiners has a right to inquire into the moral and ethical qualifications of an applicant, and the applicant has no right to privacy or privilege that justifies his or her refusal to answer any question concerning arrest and criminal records information that has come to the attention of the bar committee through other means.(III) Notwithstanding the provisions of subsection (2)(d)(I) of this section, the department of education shall require a licensed educator or an applicant for an educator's license who files a petition to seal a criminal record to notify the department of education of the pending petition to seal. The department of education has the right to inquire into the facts of the criminal offense for which the petition to seal is pending. The educator or applicant has no right to privacy or privilege that justifies his or her refusal to answer any questions of the department of education concerning the arrest and criminal records information contained in the pending petition to seal.(IV) Sealed court records are open to inspection without court order to any person or agency for research purposes if all of the following conditions are met: (A) The person or agency conducting the research is employed by the state of Colorado or is under contract with the state of Colorado or other governmental subdivision and is authorized by the state or subdivision to conduct the research;(B) The person or agency conducting the research ensures that all documents containing identifying information are maintained in secure locations and access to such documents by unauthorized persons is prohibited, that no identifying information is included in documents generated from the research conducted, and that all identifying information is deleted from documents used in the research when the research is completed;(C) The person or agency only releases any data in aggregate form;(D) If applicable, when publicly reporting de-identified aggregate information about criminal justice issues, the information would be inaccurate without the inclusion of sealed record information;(E) If applicable, when the purpose of the research cannot be accomplished without the inclusion of de-identified sealed record information; and(F) If applicable, when the person or agency conducting the research is also conducting data maintenance or data linkage on behalf of a custodian of criminal justice records and requires access to identified sealed record information.(3) A person may only file a petition with the court for sealing of each case once every twelve-month period, unless otherwise provided by the court.(4) Nothing in this part 7 regarding sealing of records authorizes the physical destruction of any conviction records.(5)(a) Inspection of the court records included in an order sealing criminal records may be permitted by the court only upon petition by the petitioner or the defendant who is the subject of the records or by the prosecuting attorney and only for those purposes named in the petition. This petition to inspect the criminal justice records must be filed by the petitioning party within the case in which the sealing order was entered.(b) Notwithstanding the provisions of subsections (2)(b) and (2)(c) of this section, the prosecuting attorney or the law enforcement agency may release to the victim in the sealed case copies of police reports or any protection orders issued in the sealed case if the victim demonstrates to the prosecuting attorney or law enforcement agency a need for the reports or court orders for a lawful purpose. The prosecuting attorney, including staff of the prosecuting attorney's office or a victim or witness assistance program, or the staff of a law enforcement agency or law enforcement victim assistance program, may discuss the sealed case, the results of the sealing proceedings, and information related to any victim services available to the victim.(c) Notwithstanding any other provision of this section, any member of the public may petition the court to unseal any court file of a criminal conviction that has previously been sealed upon a showing that circumstances have come into existence since the original sealing and, as a result, the public interest in disclosure now outweighs the defendant's interest in privacy.(6) For the purpose of protecting the author of any correspondence that becomes a part of criminal justice records, the court having jurisdiction in the judicial district in which the criminal justice records are located may, in its discretion, with or without a hearing, enter an order to seal any information, including but not limited to basic identification information contained in the correspondence that is part of the record in the criminal case. However, the court may, in its discretion, enter an order that allows the disclosure of sealed information to defense counsel or, if the defendant is not represented by counsel, to the defendant.(7)Rules of discovery - rules of evidence - witness testimony. Court orders sealing records of official actions pursuant to this part 7 do not limit the operations of: (a) The rules of discovery or the rules of evidence promulgated by the supreme court of Colorado or any other state or federal court;(b) The provisions of section 13-90-101 concerning witness testimony.(8)Service of sealing order. The court shall direct a sealing order entered pursuant to this part 7 to each custodian who may have custody of any part of the criminal justice records or arrest and criminal records information that are the subject of the order. The court shall direct that the sealing order applies to public and private custodians of the records. Whenever a court enters an order sealing criminal justice records, the court shall provide the Colorado bureau of investigation and each custodian of the records with a copy of the order. The defendant may serve a private or public custodian with a copy of the order. Each private custodian that receives a copy of the order from the defendant shall remove the records that are subject to an order from its database and shall secure and keep confidential any records in the custodian's possession. The defendant shall pay to the bureau any costs related to the sealing of the defendant's criminal justice records in the custody of the bureau, unless the defendant demonstrates that the records should have been automatically sealed pursuant to section 13-3-117, 24-72-704, or 24-72-705. Thereafter, the defendant may request and the court may grant an order sealing the case in which the records were sealed.(9)Advisements.(a) Whenever a defendant is sentenced following a conviction for an offense described in sections 24-72-706 to 24-72-708, the court shall provide him or her with a written advisement of his or her rights concerning the sealing of his or her conviction records pursuant to this section if he or she complies with the applicable provisions of this section.(b) In addition to, and not in lieu of, the requirement described in subsection (9)(a) of this section: (I) If a defendant is sentenced to probation following a conviction for an offense described in sections 24-72-706 to 24-72-708, the probation department, upon the termination of the defendant's probation, shall provide the defendant with a written advisement of his or her rights concerning the sealing of his or her conviction records pursuant to this section if he or she complies with the applicable provisions of this section; or(II) If a defendant is released on parole following a conviction for an offense described in sections 24-72-706 to 24-72-708, the defendant's parole officer, upon the termination of the defendant's parole, shall provide the defendant with a written advisement of his or her rights concerning the sealing of his or her conviction records pursuant to this section if he or she complies with the applicable provisions of this section.(10) If the person in interest has successfully completed a veterans treatment program established pursuant to section 13-5-144 in the case that is the subject of the petition to seal, the court shall consider such factor favorably in determining whether to issue an order to seal records pursuant to this section.(10.5) If the person in interest has entered into or successfully completed a substance use disorder treatment program licensed pursuant to section 27-80-205 in the case that is the subject of the petition to seal, the court shall consider such factor favorably in determining whether to issue an order to seal records pursuant to this section.(11) A defendant shall not be required to waive his or her right to file a motion to seal pursuant to the provisions of this section as a condition of a plea agreement in any case.(12)Exclusions.(a)(I) Notwithstanding any provision in this part 7 to the contrary, in regard to any conviction of the defendant resulting from a single case in which the defendant is convicted of more than one offense, records of the conviction may be sealed pursuant to the provisions of this part 7 only if the records of every conviction of the defendant resulting from that case may be sealed pursuant to the provisions of this part 7.(II) If a criminal case is dismissed or if a criminal offense is not charged due to a plea agreement in a separate case, the records are eligible for sealing at such time as the criminal case in which the conviction was entered is eligible for sealing pursuant to the provisions of this part 7.(b) Neither the court nor the state court administrator's office shall factor in or take into consideration any unpaid fines, court costs, late fees, or other fees ordered by the court in the case that is the subject of the motion to seal when the court is determining whether the record should be sealed.(c) Sealing is not available for cases when the only charges were as follows: (I) A class 1 or 2 misdemeanor traffic offense; or(II) A class A or B traffic offense.(d) Sealing is not available for:(I) Records pertaining to a deferred judgment and sentence concerning the holder of a commercial driver's license as defined in section 42-2-402 or the operator of a commercial motor vehicle as defined in section 42-2-402; and(II) Records pertaining to a deferred judgment and sentence for a felony offense for the factual basis involved in unlawful sexual behavior as defined in section 16-22-102 (9).Amended by 2023 Ch. 303,§ 38, eff. 8/7/2023.Amended by 2022 Ch. 276, § 10, eff. 8/10/2022.Amended by 2021 Ch. 455, § 5, eff. 9/7/2021.Amended by 2020 Ch. 288, § 9, eff. 9/14/2020.Amended by 2019 Ch. 295, § 1, eff. 8/2/2019.Amended by 2018 Ch. 274, § 55, eff. 5/29/2018.Added by 2014 Ch. 317, § 3, eff. 8/1/2014.L. 2019: Entire part R&RE, (HB 19-1275), ch. 2734, p. 2734, § 1, effective August 2. L. 2020: (10.5) added, (HB 20-1017), ch. 1425, p. 1425, § 9, effective September 14. 2023 Ch. 303, was passed without a safety clause. See Colo. Const. art. V, § 1(3).