Criminal Justice Records — C.R.S. 24-72-301 et seq.

This site is copyrighted, supported, and maintained by the Equal Justice Foundation.


 

| EJF Home | Join the EJF | Comments? | Get EJF newsletter | Newsletters |

| DV Home | Abstract | Contents | Authors and Site Map | Tables | Index | Bibliography |

 

| Chapter 14 — Applicable Colorado Laws |

| Next — At risk adults |

| Back — Open Meetings Law |


 

Index

Current law

24-72-301. Legislative declaration.

24-72-302. Definitions.

24-72-303. Records of official actions required - open to inspection.

24-72-304. Inspection of criminal justice records.

24-72-305. Allowance or denial of inspection - grounds - procedure - appeal.

24-72-305.3. Private access to criminal history records of volunteers and employees of charitable organizations.

24-72-305.4. Governmental access to criminal history records of applicants in regulated professions or occupations.

24-72-305.5. Access to records - denial by custodian - use of records to obtain information for solicitation.

24-72-305.6. County clerk and recorder access to criminal history records of election judges and employees.

24-72-306. Copies, printouts, or photographs of criminal justice records - fees authorized.

24-72-307. Challenge to accuracy and completeness - appeals.

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

24-72-308.5. Sealing of criminal conviction records information for offenses involving controlled substances.

24-72-309. Violation - penalty.


 

Current law (August 2010)

24-72-301. Legislative declaration.

Top

(1) The general assembly hereby finds and declares that the maintenance, access and dissemination, completeness, accuracy, and sealing of criminal justice records are matters of statewide concern and that, in defining and regulating those areas, only statewide standards in a state statute are workable.

(2) It is further declared to be the public policy of this state that criminal justice agencies shall maintain records of official actions, as defined in this part 3, and that such records shall be open to inspection by any person and to challenge by any person in interest, as provided in this part 3, and that all other records of criminal justice agencies in this state may be open for inspection as provided in this part 3 or as otherwise specifically provided by law.

 

Source: L. 77: Entire part added, p. 1244, § 1, effective December 31.

Annotation

Top

Law reviews. For article, "Home Rule Municipalities and Colorado's Open Records and Meetings Laws", see 18 Colo. Law. 1125 (1989). For article, "Sealing Criminal Records in Colorado", see 21 Colo. Law. 247 (1992).

Court considers and weighs public interest in determining disclosure question. The limiting language making certain of the public records provisions applicable except as "otherwise provided by law" is a reference to the rules of civil procedure and expresses the legislative intent that a court should consider and weigh whether disclosure would be contrary to the public interest. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Police personnel files and staff investigation reports not exempt from discovery. The Colorado open records provisions do not, ipso facto, exempt the personnel files and the staff investigation bureau reports of the Denver police department from discovery in civil litigation. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Destruction of records after complaint dismissed not intent of general assembly. The general assembly did not intend that the physical destruction of criminal arrest records be allowed after the dismissal of the complaint. People v. Wright, 43 Colo. App. 30, 598 P.2d 157 (1979).

Statutory remedies deemed exclusive. Because the criminal justice records provisions provide a comprehensive scheme concerning criminal records, the statutory remedies are exclusive for those persons whose records come within the purview of the statutory scheme. People v. Wright, 43 Colo. App. 30, 598 P.2d 157 (1979).

Applied in City & County of Denver v. District Court, 199 Colo. 223, 607 P.2d 984 (1980); City & County of Denver v. District Court, 199 Colo. 303, 607 P.2d 985 (1980); Denver Policemen's Protective Ass'n v. Lichtenstein, 660 F.2d 432 (10th Cir. 1981).

24-72-302. Definitions.

Top

As used in this part 3, unless the context otherwise requires:

(1) "Arrest and criminal records information" means information reporting the arrest, indictment, or other formal filing of criminal charges against a person; the identity of the criminal justice agency taking such official action relative to an accused person; the date and place that such official action was taken relative to an accused person; the name, birth date, last-known address, and sex of an accused person; the nature of the charges brought or the offenses alleged against an accused person; and one or more dispositions relating to the charges brought against an accused person.

(2) "Basic identification information" means the name, place and date of birth, last-known address, social security number, occupation and address of employment, physical description, photograph, handwritten signature, sex, fingerprints, and any known aliases of any person.

(3) "Criminal justice agency" means any court with criminal jurisdiction and any agency of the state, including but not limited to the department of education, or any agency of any county, city and county, home rule city and county, home rule city or county, city, town, territorial charter city, governing boards of institutions of higher education, school district, special district, judicial district, or law enforcement authority that performs any activity directly relating to the detection or investigation of crime; the apprehension, pretrial release, posttrial release, prosecution, correctional supervision, rehabilitation, evaluation, or treatment of accused persons or criminal offenders; or criminal identification activities or the collection, storage, or dissemination of arrest and criminal records information.

(4) "Criminal justice records" means all books, papers, cards, photographs, tapes, recordings, or other documentary materials, regardless of form or characteristics, that are made, maintained, or kept by any criminal justice agency in the state for use in the exercise of functions required or authorized by law or administrative rule, including but not limited to the results of chemical biological substance testing to determine genetic markers conducted pursuant to sections 16-11-102.4, 16-11-104, 16-11-204.3, and 16-11-308 (4.5), C.R.S.

Editor's note: This version of subsection (4) is effective until September 30, 2010.

(4) "Criminal justice records" means all books, papers, cards, photographs, tapes, recordings, or other documentary materials, regardless of form or characteristics, that are made, maintained, or kept by any criminal justice agency in the state for use in the exercise of functions required or authorized by law or administrative rule, including but not limited to the results of chemical biological substance testing to determine genetic markers conducted pursuant to sections 16-11-102.4, 16-11-104, 16-11-204.3, 16-11-308 (4.5), and 16-23-104, C.R.S.

Editor's note: This version of subsection (4) is effective September 30, 2010.

(5) "Custodian" means the official custodian or any authorized person having personal custody and control of the criminal justice records in question.

(6) "Disposition" means a decision not to file criminal charges after arrest; the conclusion of criminal proceedings, including conviction, acquittal, or acquittal by reason of insanity; the dismissal, abandonment, or indefinite postponement of criminal proceedings; formal diversion from prosecution; sentencing, correctional supervision, and release from correctional supervision, including terms and conditions thereof; outcome of appellate review of criminal proceedings; or executive clemency.

(7) "Official action" means an arrest; indictment; charging by information; disposition; pretrial or posttrial release from custody; judicial determination of mental or physical condition; decision to grant, order, or terminate probation, parole, or participation in correctional or rehabilitative programs; and any decision to formally discipline, reclassify, or relocate any person under criminal sentence.

(8) "Official custodian" means any officer or employee of the state or any agency, institution, or political subdivision thereof who is responsible for the maintenance, care, and keeping of criminal justice records, regardless of whether such records are in his actual personal custody and control.

(9) "Person" means any natural person, corporation, limited liability company, partnership, firm, or association.

(10) "Person in interest" means the person who is the primary subject of a criminal justice record or any representative designated by said person by power of attorney or notarized authorization; except that, if the subject of the record is under legal disability, "person in interest" means and includes his parents or duly appointed legal representative.

Top

Source: L. 77: Entire part added, p. 1244, § 1, effective December 31. L. 81: (3) amended, p. 1238, § 1, effective June 4. L. 88: (2) amended, p. 979, § 2, effective April 20. L. 89: (2) amended, p. 845, § 114, effective July 1. L. 90: (9) amended, p. 449, § 22, effective April 18. L. 98: (2) amended, p. 947, § 6, effective May 27. L. 99: (4) amended, p. 1170, § 5, effective July 1. L. 2000: (4) amended, p. 1266, § 5, effective May 26; (4) amended, p. 1027, § 7, effective July 1. L. 2002: (4) amended, p. 1023, § 43, effective June 1; (4) amended, p. 1155, § 15, effective July 1. L. 2006: (4) amended, p. 1692, § 15, effective July 1, 2007. L. 2007: (4) amended, p. 2040, § 60, effective June 1. L. 2008: (3) amended, p. 1668, § 13, effective May 29. L. 2009: (4) amended, (SB 09-241), ch. 295, p. 1577, § 2, effective September 30, 2010.

Editor's note: (1) Amendments to subsection (4) by House Bill 00-1166 and Senate Bill 00-121 were harmonized.

(2) Amendments to subsection (4) by Senate Bill 02-159 and Senate Bill 02-019 were harmonized.

Annotation

Investigative records were properly classified as "criminal justice records" under this section, because they were made and maintained in the exercise of an authorized function of the DOC governed by administrative regulations. Johnson v. Colo. Dept. of Corr., 972 P.2d 692 (Colo. App. 1998).

Police reports in the possession of a county department of social services are "criminal justice records", regardless of whether the department itself is a "criminal justice agency". Moreover, the department became a "custodian" of such records by keeping copies of the police reports in its files. In re Petition of T.L.M., 39 P.3d 1239 (Colo. App. 2001).

Sheriff's department is a "criminal justice agency". Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005).

Applied in Berman v. People, 41 Colo. App. 488, 589 P.2d 508 (1978).

24-72-303. Records of official actions required - open to inspection.

Top

(1) Each official action as defined in this part 3 shall be recorded by the particular criminal justice agency taking the official action. Such records of official actions shall be maintained by the particular criminal justice agency which took the action and shall be open for inspection by any person at reasonable times, except as provided in this part 3 or as otherwise provided by law. The official custodian of any records of official actions may make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his office.

(2) If the requested record of official action of a criminal justice agency is not in the custody or control of the person to whom application is made, such person shall forthwith notify the applicant of this fact in writing, if requested by the applicant. In such notification, he shall state, in detail to the best of his knowledge and belief, the agency which has custody or control of the record in question.

(3) If the requested record of official action of a criminal justice agency is in the custody and control of the person to whom application is made but is in active use or in storage and therefore not available at the time an applicant asks to examine it, the custodian shall forthwith notify the applicant of this fact in writing, if requested by the applicant. If requested by the applicant, the custodian shall set a date and hour within three working days at which time the record will be available for inspection.

 

Source: L. 77: Entire part added, p. 1246, § 1, effective December 31.

Annotation

Am. Jur.2d . See 2 Am. Jur.2d, Administrative Law, §§ 101, 103.

C.J.S. See 76 C.J.S., Records, §§ 60-131.

Law reviews. For article, "Home Rule Municipalities and Colorado's Open Records and Meetings Laws", see 18 Colo. Law. 1125 (1989).

A grand jury indictment is a criminal justice record of official action presented in open court, the full release of which, save the identifying information of any alleged victims of sexual assault contained therein, is not contrary to public interest. People v. Thompson, 181 P.3d 1143 (Colo. 2008).

The mere fact that an indictment contains detailed factual allegations that would otherwise be subject to grand jury secrecy does not warrant that the indictment be sealed. People v. Thompson, 181 P.3d 1143 (Colo. 2008).

24-72-304. Inspection of criminal justice records.

Top

(1) Except for records of official actions which must be maintained and released pursuant to this part 3, all criminal justice records, at the discretion of the official custodian, may be open for inspection by any person at reasonable times, except as otherwise provided by law, and the official custodian of any such records may make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his office.

(2) If the requested criminal justice records are not in the custody or control of the person to whom application is made, such person shall forthwith notify the applicant of this fact in writing, if requested by the applicant. In such notification, he shall state, in detail to the best of his knowledge and belief, the reason for the absence of the records from his custody or control, their location, and what person then has custody or control of the records.

(3) If the requested records are not in the custody and control of the criminal justice agency to which the request is directed but are in the custody and control of a central repository for criminal justice records pursuant to law, the criminal justice agency to which the request is directed shall forward the request to the central repository. If such a request is to be forwarded to the central repository, the criminal justice agency receiving the request shall do so forthwith and shall so advise the applicant forthwith. The central repository shall forthwith reply directly to the applicant.

(4)

(a) The name and any other information that would identify any victim of sexual assault or of alleged sexual assault or attempted sexual assault or alleged attempted sexual assault shall be deleted from any criminal justice record prior to the release of such record to any individual or agency other than a criminal justice agency when such record bears the notation "SEXUAL ASSAULT" prescribed by this subsection (4).

(b)

(I) A criminal justice agency or custodian of criminal justice records shall make the notation "SEXUAL ASSAULT" on any record of official action and on the file containing such record when the official action is related to the commission or the alleged commission of any of the following offenses:

(A) Sexual assault under section 18-3-402, C.R.S., or sexual assault in the first degree under section 18-3-402, C.R.S., as it existed prior to July 1, 2000;

(B) Sexual assault in the second degree under section 18-3-403, C.R.S., as it existed prior to July 1, 2000;

(C) Unlawful sexual contact under section 18-3-404, C.R.S., or sexual assault in the third degree under section 18-3-404, C.R.S., as it existed prior to July 1, 2000;

(D) Sexual assault on a child under section 18-3-405, C.R.S.;

(E) Sexual assault on a child by one in a position of trust under section 18-3-405.3, C.R.S.;

(F) Sexual assault on a client by a psychotherapist under section 18-3-405.5, C.R.S.;

(G) Incest under section 18-6-301, C.R.S.;

(H) Aggravated incest under section 18-6-302, C.R.S.; or

(I) An attempt to commit any of the offenses listed in sub-subparagraphs (A) to (H) of this subparagraph (I).

(II) The notation required pursuant to subparagraph (I) of this paragraph (b) shall be made when:

(A) Any record or file or both of official action is prepared relating to the commission or alleged commission of an offense enumerated in subparagraph (I) of this paragraph (b); or

(B) The name of any victim of the commission or alleged commission of any offense enumerated in subparagraph (I) of this paragraph (b) for which official action was taken appears on the criminal information or indictment.

(c) A criminal justice agency or custodian of criminal justice records shall make the notation "SEXUAL ASSAULT" on any record of official action and on the file containing such record when:

(I) Any employee of the court, officer of the court, or judicial officer notifies such agency or custodian of the name of any victim of the commission or alleged commission of any offense enumerated in subparagraph (I) of paragraph (b) of this subsection (4) when such victim's name is disclosed to or obtained by such employee or officer during the course of proceedings related to such official action; or

(II) Such record or file contains the name of a victim of the commission or alleged commission of any such offense and the victim requests the custodian of criminal justice records to make such a notation.

(5) Nothing in this section shall be construed to limit the discretion of the district attorney to authorize a crime victim, as defined in section 24-4.1-302 (5), or a member of the victim's immediate family, as defined in section 24-4.1-302 (6), to view all or a portion of the presentence report of the probation department.

 

Source: L. 77: Entire part added, p. 1246, § 1, effective December 31. L. 92: (4) added, p. 1106, § 6, effective July 1. L. 93: (4) amended, p. 1863, § 1, effective June 6. L. 96: (4)(a) amended, p. 1587, § 14, effective July 1. L. 97: (5) added, p. 1551, § 2, effective July 1. L. 2000: (4)(b)(I)(A), (4)(b)(I)(B), and (4)(b)(I)(C) amended, p. 707, § 36, effective July 1. L. 2006: (4)(a) and (4)(b)(I) amended, p. 421, § 3, effective April 13.

Annotation

Top

Court considers and weighs public interest in determining disclosure question. The limiting language making certain of the public records provisions applicable except as "otherwise provided by law" is a reference to the rules of civil procedure and expresses the legislative intent that a court should consider and weigh whether disclosure would be contrary to the public interest. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Person requesting inspection of an item has the initial burden to show that the item is likely a "criminal justice record". The capacity in which the custodian makes, maintains, keeps, and uses the record is the linchpin to this inquiry. Harris v. Denver Post Corp., 122 P.3d 1166 (Colo. 2005).

If the initial burden is met, the burden then shifts to the custodian to show whether the item in contention relates to the performance of public functions. The agency must look to the content of the record to resolve this issue. Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005).

A grand jury indictment is a criminal justice record of official action presented in open court, the full release of which, save the identifying information of any alleged victims of sexual assault contained therein, is not contrary to public interest. People v. Thompson, 181 P.3d 1143 (Colo. 2008).

The mere fact that an indictment contains detailed factual allegations that would otherwise be subject to grand jury secrecy does not warrant that the indictment be sealed. People v. Thompson, 181 P.3d 1143 (Colo. 2008).

24-72-305. Allowance or denial of inspection — grounds — procedure — appeal.

Top

(1) The custodian of criminal justice records may allow any person to inspect such records or any portion thereof except on the basis of any one of the following grounds or as provided in subsection (5) of this section:

(a) Such inspection would be contrary to any state statute;

(b) Such inspection is prohibited by rules promulgated by the supreme court or by the order of any court.

(1.5) On the ground that disclosure would be contrary to the public interest, the custodian of criminal justice records shall deny access to the results of chemical biological substance testing to determine the genetic markers conducted pursuant to sections 16-11-102.4, 16-11-104, 16-11-204.3, and 16-11-308 (4.5), C.R.S.

Editor's note: This version of subsection (1.5) is effective until September 30, 2010.

(1.5) On the ground that disclosure would be contrary to the public interest, the custodian of criminal justice records shall deny access to the results of chemical biological substance testing to determine the genetic markers conducted pursuant to sections 16-11-102.4, 16-11-104, 16-11-204.3, 16-11-308 (4.5), and 16-23-104, C.R.S.

Editor's note: This version of subsection (1.5) is effective September 30, 2010.

(2) to (4) Repealed.

(5) On the ground that disclosure would be contrary to the public interest, and unless otherwise provided by law, the custodian may deny access to records of investigations conducted by or of intelligence information or security procedures of any sheriff, district attorney, or police department or any criminal justice investigatory files compiled for any other law enforcement purpose.

(6) If the custodian denies access to any criminal justice record, the applicant may request a written statement of the grounds for the denial, which statement shall be provided to the applicant within seventy-two hours, shall cite the law or regulation under which access is denied or the general nature of the public interest to be protected by the denial, and shall be furnished forthwith to the applicant.

(7) Any person denied access to inspect any criminal justice record covered by this part 3 may apply to the district court of the district wherein the record is found for an order directing the custodian of such record to show cause why said custodian should not permit the inspection of such record. A hearing on such application shall be held at the earliest practical time. Unless the court finds that the denial of inspection was proper, it shall order the custodian to permit such inspection and, upon a finding that the denial was arbitrary or capricious, it may order the custodian to pay the applicant's court costs and attorney fees in an amount to be determined by the court. Upon a finding that the denial of inspection of a record of an official action was arbitrary or capricious, the court may also order the custodian personally to pay to the applicant a penalty in an amount not to exceed twenty-five dollars for each day that access was improperly denied.

(8) The allowance or denial of the right to inspect criminal justice records that contain specialized details of security arrangements or investigations shall be governed by section 24-72-204 (2) (a) (VIII).

 

Source: L. 77: Entire part added, p. 1246, § 1, effective December 31. L. 78: IP(1) amended and (2) to (4) repealed, pp. 403, 407, §§ 1, 4, effective May 5. L. 99: (1.5) added, p. 1170, § 6, effective July 1. L. 2000: (1.5) amended, p. 1266, § 6, effective May 26; (1.5) amended, p. 1028, § 8, effective July 1. L. 2002: (1.5) amended, p. 1024, § 44, effective June 1; (1.5) amended, p. 1155, § 16, effective July 1. L. 2005: (8) added, p. 503, § 3, effective July 1. L. 2006: (1.5) amended, p. 1692, § 16, effective July 1, 2007. L. 2007: (1.5) amended, p. 2040, § 61, effective June 1. L. 2009: (1.5) amended, (SB 09-241), ch. 295, p. 1577, § 3, effective September 30, 2010.

Editor's note: (1) Amendments to subsection (1.5) by House Bill 00-1166 and Senate Bill 00-121 were harmonized.

(2) Amendments to subsection (1.5) by Senate Bill 02-159 and Senate Bill 02-019 were harmonized.

Recent Annotations

General assembly's purpose in providing for judicial review of discretionary inspection decisions is to prevent abuse of discretion in denying inspection of records. Where county sheriff did not properly perform the role of balancing public and private interests in denying an inspection, the district court should have ordered him to do so. Freedom v. El Paso County Sheriff's Dept., 196 P.3d 892 (Colo. 2008).

Annotation

Top

Am. Jur.2d. See 2 Am. Jur.2d, Administrative Law, §§ 101, 103.

C.J.S. See 76 C.J.S., Records, §§ 60-131.

Court considers and weighs public interest in determining disclosure question. The limiting language making certain of the public records provisions of Colorado's open records laws applicable except as "prohibited by rules promulgated by the supreme court or by the order of any court" are a reference to the rules of civil procedure and expresses the legislative intent that a court should consider and weigh whether disclosure would be contrary to the public interest. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Police personnel files and staff investigation reports not exempt from discovery. The open records provisions do not, ipso facto, exempt the personnel files and the staff investigation bureau reports of the Denver police department from discovery in civil litigation. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Investigative records resulting from internal affairs investigation are "criminal justice records" under § 24-72-302 (4) because they were made and maintained in the exercise of an authorized function of the department of corrections governed by administrative regulations. Denial of access to the investigative records was proper because disclosure of the records would be contrary to the public interest. Johnson v. Colo. Dept. of Corr., 972 P.2d 692 (Colo. App. 1998).

Nondisclosure of police intelligence information. Trial court did not err in failing to permit petitioner full access to a city police department's taped recordings of informant's statements in which petitioner's name was mentioned where the tape could reasonably be classified as police intelligence, where the informants statements became the basis for an internal police investigation, and where the police had a legitimate interest in avoiding disclosure of investigations of potential criminal conduct not ripe for prosecution. Prestash v. City of Leadville, 715 P.2d 1272 (Colo. App. 1985).

Coroners' autopsy reports are "public records" and not "criminal justice records", so that autopsy report on homicide victim inspection by custodian thereof only pursuant to procedure under the open records law requiring establishment that disclosure would do "substantial injury to the public interest". Freedom Newspapers, Inc. v. Bowerman, 739 P.2d 881 (Colo. App. 1987).

If a private record seized from an individual is not relevant to the performance of the criminal justice agency's public function, the record is not subject to inspection. If, however, the record is relevant to the agency's public function and the agency obtained the record in its public capacity and no statute or court order prohibits inspection, the custodian may consider releasing the record in response to an inspection request. Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005).

Recordings seized by a sheriff's department and used by the department to investigate the commission of crimes are criminal justice records subject to inspection. Harris v. Denver Post Corp., 123 P.3d 1166 (Colo. 2005).

24-72-305.3. Private access to criminal history records of volunteers and employees of charitable organizations.

Top

(1) (Deleted by amendment, L. 2001, p. 1233, § 1, effective June 5, 2001.)

(2)

(a) As used in this subsection (2):

(I) "Authorized agency" means a division or office of a state designated by a state to report, receive, or disseminate information under the "Volunteers for Children Act", contained in Public Law 105-251, as amended.

(II) "Bureau" means the Colorado bureau of investigation created in section 24-33.5-401.

(III) "Care" means the provision of care, treatment, education, training, instruction, supervision, or recreation to children, the elderly, or individuals with disabilities.

(IV) "Convicted" means a conviction by a jury or by a court and shall also include a deferred judgment and sentence agreement, a deferred prosecution agreement, a deferred adjudication agreement, an adjudication, and a plea of guilty or nolo contendere.

(V) (Deleted by amendment, L. 2001, p. 1233, § 1, effective June 5, 2001.)

(V.2) "The elderly" means persons sixty years of age or older receiving care.

(V.5) "Individuals with disabilities" means persons with a mental or physical impairment who require assistance to perform one or more daily living tasks.

(VI) "Provider" shall have the same meaning as set forth in 42 U.S.C. sec. 5119c and includes an owner of, an employee of, an applicant seeking employment with, or a volunteer with a qualified entity.

(VII) "Qualified entity" means a business or organization, whether public, private, for-profit, not-for-profit, or voluntary, that provides care or care placement services, including a business or organization that licenses or certifies others to provide care or care placement services.

(b) For the purpose of implementing the provisions of the "Volunteers for Children Act", contained in Public Law 105-251, as amended, on and after July 1, 2000, each qualified entity in the state may contact an authorized agency for the purpose of determining whether a provider has been convicted of, or is under pending indictment for, a crime that bears upon the provider's fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities. Such crimes shall include, but need not be limited to:

(I) Felony child abuse, as specified in section 18-6-401, C.R.S.;

(II) A crime of violence, as defined in section 18-1.3-406, C.R.S.;

(III) Any felony offenses involving unlawful sexual behavior, as defined in section 16-22-102 (9), C.R.S.;

(IV) Any felony, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence, as defined in section 18-6-800.3, C.R.S.;

(V) Any felony offense in any other state, the elements of which are substantially similar to the elements of any one of the offenses described in subparagraphs (I) to (IV) of this paragraph (b).

(c)

(I) For purposes of this subsection (2), the bureau shall be designated an authorized agency. The executive director of the department of public safety shall identify by rule, consistent with applicable federal and state law, those entities that may serve as qualified entities. In addition, the director of the department of public safety may promulgate all reasonable and necessary rules to implement this subsection (2).

(II) For purposes of this subsection (2):

(A) The department of human services, created in section 24-1-120, may serve as an authorized agency for those qualified entities that are regulated by the said department. The state board of human services shall identify by rule, consistent with applicable federal and state law, those entities that may serve as qualified entities. In addition, the state board of human services may promulgate all reasonable and necessary rules to implement this subsection (2).

(B) The department of public health and environment, created in section 24-1-119, may serve as an authorized agency for those qualified entities that are regulated by said department. The state board of health shall identify by rule, consistent with applicable federal and state law, those entities that may serve as qualified entities. In addition, the state board of health may promulgate all reasonable and necessary rules to implement this subsection (2).

(C) The department of education, created in section 24-1-115, may serve as an authorized agency for those qualified entities that are regulated by said department. The state board of education shall identify by rule, consistent with applicable federal and state law, those entities that may serve as qualified entities. In addition, the state board of education may promulgate all reasonable and necessary rules to implement this subsection (2).

(d) Any authorized agency reporting, receiving, or disseminating criminal history record information pursuant to this subsection (2) shall request such information only through the bureau. The bureau, in responding to such request, shall access records that are maintained by or within this state and any other state or territory of the United States, any other nation, or any agency or subdivision of the United States including, but not limited to, the federal bureau of investigation in the United States department of justice.

 

Source: L. 95: Entire section added, p. 111, § 1, effective March 30. L. 2000: Entire section amended, p. 1701, § 1, effective July 1. L. 2001: Entire section amended, p. 1233, § 1, effective June 5. L. 2002: (2)(b)(III) amended, p. 1189, § 32, effective July 1; (2)(b)(II) amended, p. 1535, § 258, effective October 1.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (2)(b)(II), see section 1 of chapter 318, Session Laws of Colorado 2002.

24-72-305.4. Governmental access to criminal history records of applicants in regulated professions or occupations.

Top

(1) Any division, board, commission, or person responsible for the licensing, certification, or registration functions for any governmental entity, in addition to any other authority conferred by law, may use fingerprints to access, for comparison purposes, arrest history records of:

(a) Any applicant for licensure, registration, or certification to practice a profession or occupation;

(b) Any licensee, registrant, or person certified to practice a profession or occupation;

(c) Any prospective employee or any employee of a licensee, registrant, or person certified to practice an occupation or profession.

(2) The persons or entities authorized to access arrest history records pursuant to subsection (1) of this section may access records that are maintained by or within this state through the Colorado bureau of investigation.

(3) For the purposes of this section, "governmental entity" means the state and any of its political subdivisions, including entities governed by home rule charters, and any agency or institution of the state or any of its political subdivisions.

 

Source: L. 94: Entire section added, p. 1048, § 1, effective July 1. L. 2002: IP(1) and (2) amended, p. 977, § 14, effective June 1.

24-72-305.5. Access to records - denial by custodian - use of records to obtain information for solicitation.

Top

Records of official actions and criminal justice records and the names, addresses, telephone numbers, and other information in such records shall not be used by any person for the purpose of soliciting business for pecuniary gain. The official custodian shall deny any person access to records of official actions and criminal justice records unless such person signs a statement which affirms that such records shall not be used for the direct solicitation of business for pecuniary gain.

 

Source: L. 92: Entire section added, p. 406, § 23, effective June 3.

Annotation

Law reviews. For article, "Commercial Speech and Lawyer Access to Public Records", see 24 Colo. Law. 1313 (1995).

24-72-305.6. County clerk and recorder access to criminal history records of election judges and employees.

 

(1) A county clerk and recorder shall request the criminal history records from the public web site maintained by the Colorado bureau of investigation for all full-time, part-time, permanent, and contract employees of the county who staff a counting center and who have any access to electromechanical voting systems or electronic vote tabulating equipment. The county clerk and recorder shall request the records not less than once each calendar year prior to the first election of the year.

(2) A county clerk and recorder may request, in his or her discretion, the criminal history records from the public web site maintained by the Colorado bureau of investigation for an election judge serving in the county.

(3) A county clerk and recorder authorized to access criminal history records pursuant to this section may access records that are maintained by or within this state directly through the public web site maintained by the Colorado bureau of investigation. A county clerk and recorder that does not have access or authorization to use a credit card for conducting business on behalf of the county in which the clerk and recorder serves may request that the county sheriff for the county access the criminal records from the public web site maintained by the Colorado bureau of investigation. Criminal records shall not be accessed pursuant to this section directly from the Colorado criminal justice computer system or the national criminal justice computer system.

 

Source: L. 2006: Entire section added, p. 120, § 1, effective March 27.

24-72-306. Copies, printouts, or photographs of criminal justice records - fees authorized.

Top

(1) Criminal justice agencies may assess reasonable fees, not to exceed actual costs, including but not limited to personnel and equipment, for the search, retrieval, and redaction of criminal justice records requested pursuant to this part 3 and may waive fees at their discretion. In addition, criminal justice agencies may charge a fee not to exceed twenty-five cents per standard page for a copy of a criminal justice record or a fee not to exceed the actual cost of providing a copy, printout, or photograph of a criminal justice record in a format other than a standard page. Where fees for certified copies or other copies, printouts, or photographs of criminal justice records are specifically prescribed by law, such specific fees shall apply. Where the criminal justice agency is an agency or department of any county or municipality, the amount of such fees shall be established by the governing body of the county or municipality in accordance with this subsection (1).

(2) If the custodian does not have facilities for making copies, printouts, or photographs of records which the applicant has the right to inspect, the applicant shall be granted access to the records for the purpose of making copies, printouts, or photographs. The copies, printouts, or photographs shall be made while the records are in the possession, custody, and control of the custodian thereof and shall be subject to the supervision of such custodian. When practical, they shall be made in the place where the records are kept, but, if it is impractical to do so, the custodian may allow other arrangements to be made for this purpose. If other facilities are necessary, the cost of providing them shall be paid by the person desiring a copy, printout, or photograph of the records. The official custodian may establish a reasonable schedule of times for making copies, printouts, or photographs and may charge the same fee for the services rendered by him or his deputy in supervising the copying, printing out, or photographing as he may charge for furnishing copies under subsection (1) of this section.

(3) The provisions of this section shall not apply to discovery materials that a criminal justice agency is required to provide in a criminal case pursuant to rule 16 of the Colorado rules of criminal procedure.

 

Source: L. 77: Entire part added, p. 1248, § 1, effective December 31. L. 2008: (1) amended and (3) added, p. 428, § 1, effective August 5.

Annotation

Am. Jur.2d . See 2 Am. Jur.2d, Administrative Law, §§ 101, 103.

C.J.S. See 76 C.J.S., Records, §§ 60-131.

Subsection (1) can be read in harmony with the requirement of Crim. P. 16 part V(c) so that any costs for search or retrieval are limited to materials discoverable. Thus, an agency is limited to reasonable fees for discoverable materials. People v. Trujillo, 114 P.3d 27 (Colo. App. 2004).

24-72-307. Challenge to accuracy and completeness — appeals.

Top

(1) Any person in interest who is provided access to any criminal justice records pursuant to this part 3 shall have the right to challenge the accuracy and completeness of records to which he has been given access, insofar as they pertain to him, and to request that said records be corrected.

(2) If the custodian refuses to make the requested correction, the person in interest may request a written statement of the grounds for the refusal, which statement shall be furnished forthwith.

(3) In the event that the custodian requires additional time to evaluate the merit of the request for correction, he shall so notify the applicant in writing forthwith. The custodian shall then have thirty days from the date of his receipt of the request for correction to evaluate the request and to make a determination of whether to grant or refuse the request, in whole or in part, which determination shall be forthwith communicated to the applicant in writing.

(4) Any person in interest whose request for correction of records is refused may apply to the district court of the district wherein the record is found for an order directing the custodian of such record to show cause why he should not permit the correction of such record. A hearing on such application shall be held at the earliest practical time. Unless the court finds that the refusal of correction was proper, it shall order the custodian to make such correction, and, upon a finding that the refusal was arbitrary or capricious, it may order the criminal justice agency for which the custodian was acting to pay the applicant's court costs and attorney fees in an amount to be determined by the court.

 

Source: L. 77: Entire part added, p. 1248, § 1, effective December 31.

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

Top

(1)

(a)

(I) Except as otherwise provided in subparagraphs (II) and (III) of this paragraph (a), any person in interest may petition the district court of the district in which any arrest and criminal records information pertaining to said person in interest is located for the sealing of all of said records, except basic identification information, if the records are a record of official actions involving a criminal offense for which said person in interest was not charged, in any case which was completely dismissed, or in any case in which said person in interest was acquitted.

(II) Except as provided in subparagraph (III) of this paragraph (a), arrest or criminal records information may not be sealed if:

(A) An offense is not charged due to a plea agreement in a separate case;

(B) A dismissal occurs as part of a plea agreement in a separate case; or

(C) The defendant still owes restitution, fines, court costs, late fees, or other fees ordered by the court in the case that is the subject of the petition to seal criminal records, unless the court that entered the order for restitution, fines, court costs, late fees, or other fees has vacated such order.

(III) A person in interest may petition the district court of the district in which any arrest and criminal records information pertaining to said person in interest is located for the sealing of all of said records, except basic identification information, if the records are a record of official actions involving a criminal offense that was not charged or a case that was dismissed due to a plea agreement in a separate case, and if:

(A) The petition is filed ten years or more after the date of the final disposition of all criminal proceedings against the person in interest; and

(B) The person in interest has not been charged for a criminal offense in the ten years since the date of the final disposition of all criminal proceedings against the person in interest.

(b)

(I) Any petition to seal criminal records shall include a listing of each custodian of the records to whom the sealing order is directed and any information which accurately and completely identifies the records to be sealed.

(II)

(A) Upon the filing of a petition, the court shall review the petition and determine whether there are grounds under this section to proceed to a hearing on the petition. If the court determines that the petition on its face is insufficient or if the court determines that, after taking judicial notice of matters outside the petition, the petitioner is not entitled to relief under this section, the court shall enter an order denying the petition and mail a copy of the order to the petitioner. The court's order shall specify the reasons for the denial of the petition.

(B) If the court determines that the petition is sufficient on its face and that no other grounds exist at that time for the court to deny the petition under this section, the court shall set a date for a hearing and the petitioner shall notify the prosecuting attorney by certified mail, the arresting agency, and any other person or agency identified by the petitioner.

(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. Thereafter, the petitioner may request and the court may grant an order sealing the civil case in which the records were sealed.

(d) Upon the entry of an order to seal the records, the petitioner and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such records exist with respect to such person.

(e) Inspection of the records included in an order sealing criminal records may thereafter be permitted by the court only upon petition by the person who is the subject of such records or by the prosecuting attorney and only for those purposes named in such petition.

(f)

(I) Employers, educational institutions, state and local government agencies, officials, and employees shall not, in any application or interview or in any other way, require an applicant to disclose any information contained in sealed records. An applicant need not, in answer to any question concerning arrest and criminal records information that has been sealed, include a reference to or information concerning such sealed information and may state that no such action has ever occurred. Such an application may not be denied solely because of the applicant's refusal to disclose arrest and criminal records information that has been sealed.

(II) Subparagraph (I) of this paragraph (f) shall not preclude the bar committee of the Colorado state board of law examiners from making further inquiries into the fact of a conviction which comes to the attention of the bar committee through other means. The bar committee of the Colorado state board of law examiners shall have a right to inquire into the moral and ethical qualifications of an applicant, and the applicant shall have no right to privacy or privilege which justifies his refusal to answer to 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 subparagraph (I) of this paragraph (f), the department of education may 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 shall have the right to inquire into the facts of the criminal offense for which the petition to seal is pending. The educator or applicant shall have no right to privacy or privilege that justifies his or her refusal to answer any questions concerning the arrest and criminal records information contained in the pending petition to seal.

(g) Nothing in this section shall be construed to authorize the physical destruction of any criminal justice records.

(1.5) For the purpose of protecting the author of any correspondence which 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 thereon, enter an order to seal any information, including, but not limited to, basic identification information contained in said correspondence. However, the court may, in its discretion, enter an order which allows the disclosure of sealed information to defense counsel or, if the defendant is not represented by counsel, to the defendant.

(2) Advisements.

(a) Whenever a defendant has appeared before the court and has charges against him or her dismissed or not filed, or whenever the defendant is acquitted, the court shall provide him or her with a written advisement of his or her rights pursuant to this section concerning the sealing of his or her criminal justice records 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 paragraph (a) of this subsection (2), if a defendant's case is dismissed after a period of supervision by probation, the probation department, upon the termination of the defendant's probation, shall provide the defendant with a written advisement of his or her rights pursuant to this section concerning the sealing of his or her criminal justice records if he or she complies with the applicable provisions of this section.

(3) Exceptions.

(a) This section shall not apply to records pertaining to:

(I) A class 1 or class 2 misdemeanor traffic offense;

(II) A class A or class B traffic infraction;

(III) A conviction for a violation of section 42-4-1301 (1) or (2), C.R.S.

(b) Court orders sealing records of official actions entered pursuant to this section shall not limit the operation of rules of discovery promulgated by the supreme court of Colorado.

(c) This section shall not apply to records pertaining to a conviction of an offense for which the factual basis involved unlawful sexual behavior, as defined in section 16-22-102 (9), C.R.S.

(d) This section shall not apply to arrest and criminal justice information or criminal justice records in the possession and custody of a criminal justice agency when inquiry concerning the arrest and criminal justice information or criminal justice records is made by another criminal justice agency.

(e) This section shall not apply to records pertaining to a conviction of an offense concerning the holder of a commercial driver's license as defined in section 42-2-402, C.R.S., or the operator of a commercial motor vehicle as defined in section 42-2-402, C.R.S.

 

Source: L. 77: Entire part added, p. 1249, § 1, effective December 31. L. 78: (1) and (2) amended, (1.1) to (1.3) and (9) added, and (3)(b) repealed, pp. 403, 406, §§ 2, 3, effective May 5. L. 79: (1)(a), (1.1)(c) to (1.1)(f), and (9) amended and (10) added, p. 975, § 1, effective March 13. L. 81: Entire section R&RE, p. 1238, § 2, effective June 4. L. 82: (2)(b)(I), (2)(b)(II), and (5)(a) amended, p. 655, § 8, effective January 1, 1983. L. 83: (1)(a) amended, p. 680, § 4, effective July 1; (2)(i) and (3)(c)(II) amended, p. 963, § 11, effective July 1, 1984. L. 87: (5)(a) amended, p. 1498, § 8, effective July 1. L. 88: Entire section R&RE, p. 979, § 3, effective April 20. L. 92: (1.5) added, p. 281, § 1, effective July 1; (3) amended, p. 1106, § 7, effective July 1. L. 95: (3)(a) amended, p. 314, § 1, effective July 1. L. 96: (1)(a) amended, p. 736, § 5, effective July 1; (3)(c) amended and (3)(d) added, p. 1587, § 13, effective July 1. L. 2002: (3)(c) amended, p. 1190, § 33, effective July 1. L. 2003: (1)(b)(II) amended, p. 634, § 1, effective March 18. L. 2004: (1)(a) amended, p. 1375, § 1, effective August 4. L. 2006: (1)(a)(II) amended, p. 422, § 4, effective April 13. L. 2008: (1)(f)(III) added, p. 1668, §14, effective May 29; (1)(a)(III), (2), and (3)(a) amended, p. 1937, § 1, effective July 1; (3)(e) added, p. 473, § 1, effective July 1.

Annotation

Top

Law reviews. For article, "Punitive Damages in Wrongful Discharge Cases", see 15 Colo. Law. 658 (1986). For article, "Sealing Criminal Records in Colorado", see 21 Colo. Law. 247 (1992).

Section indicates the general assembly's intent to preserve the complete criminal justice record, but in a form that protects the individual named from any harmful effects. People v. Wright, 43 Colo. App. 30, 598 P.2d 157 (1979).

Physical destruction of records not generally allowed. By fashioning the remedy of sealing records, the general assembly did not intend that the physical destruction of the records also be allowed in most situations. People v. Wright, 43 Colo. App. 30, 598 P.2d 157 (1979).

The court must balance the competing interests in determining whether criminal records should be sealed, and its decision in this regard may not be overturned on appeal absent an abuse of that discretion. In re T.L.M., 39 P.3d 1239 (Colo. App. 2001).

Arrest and criminal records should not be sealed when the underlying case is not completely dismissed as contemplated in subsection (1)(a)(I). Warren v. People, 192 P.3d 477 (Colo. App. 2008).

A case that is dismissed with prejudice is not "completely dismissed." Warren v. People, 192 P.3d 477 (Colo. App. 2008).

Since this section concerns the sealing of criminal records and juvenile delinquency proceedings are noncriminal in nature, the trial court should have proceeded under the expungement provisions set forth in § 19-1-306 when considering a petition to seal arrest and criminal records relating to a juvenile delinquency case. C.B. v. People, 122 P.3d 1065 (Colo. App. 2005).

Once the court determines that arrest records and criminal justice information should be sealed, subsection (1)(c) requires the order to be directed to every custodian having custody of any of the records to be sealed. In re T.L.M., 39 P.3d 1239 (Colo. App. 2001).

No irreconcilable conflict or inconsistency between the sealing provisions of this section and § 19-3-313 (7)(a) and (9). Because they deal with the same subject, all of these provisions should be given effect. In re T.L.M., 39 P.3d 1239 (Colo. App. 2001) (decided before the 2004 repeal of § 19-3-313).

There is no basis under either statutory scheme for exempting criminal records held by the Boulder county department of social services from the application of the sealing provisions of this section. Rather, the provisions apply to the police reports in the possession of the Boulder county department of social services, but do not apply to its own investigative records or to the remainder of its files. In re T.L.M., 39 P.3d 1239 (Colo. App. 2001) (decided before the 2004 repeal of § 19-3-313).

An individual may deny his past criminal record. Subsection (3)(f)(I) (now subsection (1)(f)(I)) clearly allows an individual to deny past criminal involvement if the criminal record has been sealed pursuant to the provisions of subsection (3)(c)(I) (now subsection (1)(c)(I)). In making a determination, the trial court should consider the severity of the offense sought to be sealed, the time which has elapsed since the conviction, the subsequent criminal history of the petitioner, and the need for the government agency to retain the records. D.W.M. v. District Court, 751 P.2d 74 (Colo. 1988); People v. Bushu, 876 P.2d 106 (Colo. App. 1994).

Where a petitioner requests to seal criminal records of an acquittal, the court may also consider factors relating to the strength of the case, petitioner's age and employment history, and various consequences if the records are not sealed. The balance test allows for consideration of other factors on a case-by-case basis. People v. Bushu, 876 P.2d 106 (Colo. App. 1994).

Where all charges against the petitioner were dismissed or resulted in acquittal, the severity of the charges is not a factor supporting denial of a petition to seal the records. If anything, in an acquittal context, the fact that the charges of which the petitioner was acquitted were serious increases the potential harm to the petitioner if the records are not sealed. R.J.Z. v. People, 104 P.3d 278 (Colo. App. 2004).

There is no reason to attach any significance to a brief lapse of time since the trial when the sealing of records is sought after an acquittal. R.J.Z. v. People, 104 P.3d 278 (Colo. App. 2004).

Assessing the strength of the case against a defendant based on the length of jury deliberations is necessarily speculative and does not, without more, establish that the prosecution's case was strong. R.J.Z. v. People, 104 P.3d 278 (Colo. App. 2004).

Where all charges of sexual misconduct were dismissed or resulted in acquittal, the petitioner's desire to pursue employment that will permit the petitioner to supervise and be alone with children could not warrant keeping the records unsealed, given the absence of other factors supporting denial of the petition to seal the records. R.J.Z. v. People, 104 P.3d 278 (Colo. App. 2004).

Petitioner's punishment was increased retroactively in violation of the ex post facto clause of the Colorado Constitution when petitioner was denied the automatic entry of an order limiting access to records relating to the charge against her because the trial court applied an amendment of the statute enacted after petitioner committed her crime. In re R.B., 815 P.2d 999 (Colo. App. 1991).

The opportunity to petition and to have the balancing test applied in a hearing under this section is not a vested or a substantive right. People v. D.K.B., 843 P.2d 1326 (Colo. 1993); E.J.R. v. District Court, County of Boulder, 892 P.2d 222 (Colo. 1995).

Therefore, where petitioner was convicted prior to the 1988 amendment to subsection (1)(a) but did not petition for sealing prior to the amendment, applying the provisions of the amendment to the petitioner did not violate the constitutional prohibition against retrospective legislation. People v. D.K.B., 843 P.2d 1326 (Colo. 1993).

Convicted felon, however, has vested privacy interest in sealed criminal records as of the date of the court's final order to seal the records and expiration of the appeal period, regardless of whether the court, having proper subject matter jurisdiction to seal criminal records, inappropriately authorized the sealing of felony records. The judgment may have been erroneous, but is not void. E.J.R. v. District Court, County of Boulder, 892 P.2d 222 (Colo. 1995).

An order entered under subsection (1)(c) to seal records must be directed to every custodian having custody of any of the records to be sealed. In re Petition of T.L.M., 39 P.3d 1239 (Colo. App. 2001).

A waiver of the right to request sealing of records is not contrary to public policy . Rather, public policy favors the enforcement of a defendant's express waiver of the statutory right to request sealing of criminal records. People v. Ward-Garrison, 72 P.3d 423 (Colo. App. 2003); Walker-Lawrence v. District Court of Teller County, 74 P.3d 521 (Colo. App. 2003).

Applied in Tipton v. City of Lakewood ex rel. People, 198 Colo. 18, 595 P.2d 689 (1979); People v. Whittle, 628 P.2d 169 (Colo. App. 1981); People v. Chamberlin, 74 P.3d 489 (Colo. App. 2003).

24-72-308.5. Sealing of criminal conviction records information for offenses involving controlled substances.

Top

(1) Definitions. For purposes of this section, "conviction records" means arrest and criminal records information and any records pertaining to a judgment of conviction.

(2) Sealing of conviction records.

(a)

(I) Subject to the limitations described in subsection (4) of this section, a defendant may petition the district court of the district in which any conviction records pertaining to the defendant are located for the sealing of the conviction records, except basic identifying information, if:

(A) The petition is filed ten or more years after the date of the final disposition of all criminal proceedings against the defendant or the release of the defendant from supervision concerning a criminal conviction, whichever is later; and

(B) The defendant has not been charged or convicted for a criminal offense in the ten or more years since the date of the final disposition of all criminal proceedings against him or her or the date of the defendant's release from supervision, whichever is later.

(II) An order sealing conviction records shall not deny access to the criminal records of a defendant by any court, law enforcement agency, criminal justice agency, prosecuting attorney, or party or agency required by law to conduct a criminal history record check on an individual. An order sealing conviction records shall not be construed to vacate a conviction. A conviction sealed pursuant to this section 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 but not limited to any subsequent case that is filed against the defendant, or for any other lawful purpose within the scope of his, her, or its duties. If a defendant is convicted of a new criminal offense after an order sealing conviction records is entered, the court, on its own motion or upon the motion of any prosecuting attorney, shall order the conviction records to be unsealed. A party or agency required by law to conduct a criminal history record check shall be authorized to use any sealed conviction for the lawful purpose for which the criminal history record check is required by law.

(III) Conviction records may not be sealed if the defendant still owes restitution, fines, court costs, late fees, or other fees ordered by the court in the case that is the subject of the petition to seal conviction records, unless the court that entered the order for restitution, fines, court costs, late fees, or other fees has vacated the order.

(b)

(I) A petition to seal conviction records pursuant to this section shall include a listing of each custodian of the records to whom the sealing order is directed and any information that accurately and completely identifies the records to be sealed. A verified copy of the defendant's criminal history, current through at least the twentieth day prior to the date of the filing of the petition, shall be submitted to the court by the defendant along with the petition at the time of filing, but in no event later than the tenth day after the petition is filed. The defendant shall be responsible for obtaining and paying for his or her criminal history record.

(II)

(A) Upon the filing of a petition, the court shall review the petition and determine whether there are grounds under this section to proceed to a hearing on the petition. If the court determines that the petition on its face is insufficient or if the court determines that, after taking judicial notice of matters outside the petition, the defendant is not entitled to relief under this section, the court shall enter an order denying the petition and mail a copy of the order to the defendant. The court's order shall specify the reasons for the denial of the petition.

(B) If the court determines that the petition is sufficient on its face and that no other grounds exist at that time for the court to deny the petition under this section, the court shall set a date for a hearing, and the defendant shall notify by certified mail the prosecuting attorney, the arresting agency, and any other person or agency identified by the defendant.

(c) After the hearing described in subparagraph (II) of paragraph (b) of this subsection (2) is conducted and if the court finds that the harm to the privacy of the defendant or the dangers of unwarranted, adverse consequences to the defendant outweigh the public interest in retaining the conviction records, the court may order the conviction records, except basic identification information, to be sealed. In making this determination, the court shall, at a minimum, consider the severity of the offense that is the basis of the conviction records sought to be sealed, the criminal history of the defendant, and the need for the government agency to retain the records. An order entered pursuant to this paragraph (c) shall be directed to each custodian who may have custody of any part of the conviction records that are the subject of the order. Whenever a court enters an order sealing conviction records pursuant to this paragraph (c), the defendant shall provide the Colorado bureau of investigation and each custodian of the conviction records with a copy of the order and shall pay to the bureau any costs related to the sealing of his or her criminal conviction records in the custody of the bureau. Thereafter, the defendant may request and the court may grant an order sealing the civil case in which the conviction records were sealed.

(d) Except as otherwise provided in subparagraph (II) of paragraph (a) of this subsection (2), upon the entry of an order to seal the conviction records, the defendant and all criminal justice agencies may properly reply, upon an inquiry in the matter, that conviction records do not exist with respect to the defendant.

(e) Except as otherwise provided in subparagraph (II) of paragraph (a) of this subsection (2), inspection of the records included in an order sealing conviction records may thereafter be permitted by the court only upon petition by the defendant.

(f)

(I) Except as otherwise provided in subparagraph (II) of paragraph (a) of this subsection (2) or in subparagraphs (II) and (III) of this paragraph (f), employers, state and local government agencies, officials, landlords, and employees shall not, in any application or interview or in any other way, require an applicant to disclose any information contained in sealed conviction records. An applicant need not, in answer to any question concerning conviction records that have been sealed, include a reference to or information concerning the sealed conviction records and may state that the applicant has not been criminally convicted.

(II) Subparagraph (I) of this paragraph (f) shall 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 shall have a right to inquire into the moral and ethical qualifications of an applicant, and the applicant shall not have a right to privacy or privilege that justifies his or her refusal to answer a question concerning sealed conviction records that have come to the attention of the bar committee through other means.

(III) The provisions of subparagraph (I) of this paragraph (f) shall not apply to a criminal justice agency or to an applicant to a criminal justice agency.

(IV) Any member of the public may petition the court to unseal any file that has been previously 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.

(g) The office of the state court administrator shall post on its web site a list of all petitions to seal conviction records that are filed with a district court. A district court may not grant a petition to seal conviction records until at least thirty days after the posting. After the expiration of thirty days following the posting, the petition to seal conviction records and information pertinent thereto shall be removed from the web site of the office of the state court administrator.

(h) Nothing in this section shall be construed to authorize the physical destruction of any conviction records.

(i) Notwithstanding any provision in this section to the contrary, in regard to any conviction of a 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 section only if the records of every conviction of the defendant resulting from that case may be sealed pursuant to the provisions of this section.

(3) Advisements.

(a) Whenever a defendant is sentenced following a conviction of an offense described in paragraph (a) of subsection (4) of this section, 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 paragraph (a) of this subsection (3):

(I) If a defendant is sentenced to probation following a conviction of an offense described in paragraph (a) of subsection (4) of this section, 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.

(II) If a defendant is released on parole following a conviction of an offense described in paragraph (a) of subsection (4) of this section, 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.

(4) Applicability.

(a) Except as otherwise provided in paragraph (b) of this subsection (4), the provisions of this section shall apply only to conviction records pertaining to judgments of conviction entered on and after July 1, 2008, for:

(I) Any petty offense in violation of a provision of article 18 of title 18, C.R.S.;

(II) Any misdemeanor in violation of a provision of article 18 of title 18, C.R.S.;

(III) Any class 5 or class 6 felony in violation of a provision of article 18 of title 18, C.R.S.; except that the provisions of this section shall not apply to conviction records pertaining to a judgment of conviction for a class 5 or class 6 felony for the sale, manufacturing, or dispensing of a controlled substance, as defined in section 18-18-102 (5), C.R.S.; attempt or conspiracy to commit the sale, manufacturing, or dispensing of a controlled substance; or possession with the intent to manufacture, dispense, or sell a controlled substance;

(IV) Any offense that would be classified as a class 5 or 6 felony in violation of a provision of article 18 of title 18, C.R.S., if the offense were to have occurred on July 1, 2008.

(b) For any judgment of conviction entered prior to July 1, 2008, for which the defendant would otherwise qualify for relief under this section, the defendant may obtain an order from the court to seal conviction records if:

(I) The prosecuting attorney does not object to the sealing; and

(II) The defendant pays to the office of the prosecuting attorney all reasonable attorney fees and costs of the prosecuting attorney relating to the petition to seal prior to the entry of an order sealing the conviction records; and

(III) The defendant pays:

(A) The filing fee required by law; and

(B) An additional filing fee of two hundred dollars to cover the actual costs related to the filing of the petition to seal records.

(c) The additional filing fees collected under sub-subparagraph (B) of subparagraph (III) of paragraph (b) of this subsection (4) shall be transmitted to the state treasurer for deposit in the judicial stabilization cash fund created in section 13-32-101 (1.5), C.R.S.

(d) The provisions of this section shall not apply to conviction records that are in the possession of a criminal justice agency when an inquiry concerning the conviction records is made by another criminal justice agency.

(5) Rules of discovery — rules of evidence — witness testimony. Court orders sealing records of official actions pursuant to this section shall 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; or

(b) The provisions of section 13-90-101, C.R.S., concerning witness testimony.

 

Source: L. 2008: Entire section added, p. 1938, § 2, effective July 1.

24-72-309. Violation — penalty.

Top

Any person who willfully and knowingly violates the provisions of this part 3 is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one hundred dollars, or by imprisonment in the county jail for not more than ninety days, or by both such fine and imprisonment.

 

Source: L. 77: Entire part added, p. 1250, § 1, effective December 31.

Annotation

Applied in People v. Wright, 43 Colo. App. 30, 598 P.2d 157 (1979).

Top


 

| EJF Home | Join the EJF | Comments? | Get EJF newsletter | Newsletters |

| DV Home | Abstract | Contents | Authors and Site Map | Tables | Index | Bibliography |

 

| Chapter 14 — Applicable Colorado Laws |

| Next — At risk adults |

| Back — Open Meetings Law |


 

This site is supported and maintained by the Equal Justice Foundation.

Added August 14, 2010

Last modified 5/11/15