Q: I was arrested and charged with assault in Colorado, but the case was dismissed before trial. For how long will the arrest and charge appear on criminal background checks?
A: Your arrest history will appear on your record indefinitely until you take action to have the record sealed. This can be accomplished by filing a petition in the Colorado civil district court for the county in which you were arrested. The procedure is spelled out in detail in Colorado Revised Statutes section 24-72-308. The key question for the court in determining whether to grant the petition is whether your need for privacy is outweighed by the public’s right to know about the information on your record.
Q: I was convicted of felony burglary five years ago and was sentenced to probation. I successfully completed my probation and have not been in trouble since. How can I get this expunged from my record to avoid problems with potential employers?
A: Under Colorado law, criminal records are said to be “sealed" rather than “expunged," though both terms refer to basically the same thing. Unfortunately, a sentence of probation on a burglary charge results in a record that cannot be sealed. With a few exceptions, most notably for certain minor drug convictions, a record cannot be sealed if the case resulted in a conviction, whether at trial or via a plea of guilty or no contest. An exception to this is a conviction via a guilty plea that results in a deferred judgment and sentence. Upon successful completion of a deferred judgment and sentence, the guilty plea is withdrawn and the case is dismissed and immediately eligible for sealing.
Q: I pleaded guilty to domestic violence-related charges and received a deferred judgment and sentence, which I successfully completed. Will this show up on an employer background check?
A: Yes. The background check would show the arrest and charges and indicate that a guilty plea was entered. You would have to file a petition to seal your record to keep a potential employer from learning about the incident via a background check.
Q: I was convicted of drug possession two years ago and sentenced to 5 days in jail followed by probation. I haven’t been in trouble since then. Can this be expunged from my record?
A: In most instances, a conviction resulting in a sentence of probation or jail time would not be eligible for sealing. However, Colorado law makes an exception for certain drug convictions. Petty offense, misdemeanor, and class 5 and class 6 felony convictions for drugs not involving the sale, manufacture or dispensing of drugs are eligible for sealing after a certain time has passed with no new offenses.
For such convictions entered on or after July 1, 2011, the waiting periods are as follows. Petty offenses and class 2 and 3 misdemeanors: 3 years; class 1 misdemeanors: 5 years; class 5 and 6 felonies: 7 years.
For such convictions entered before July 1, 2011, the waiting period for all offense levels is ten years after final disposition of the case or the defendant’s release from supervision.
Also note a conviction for a class 4 or above felony drug offense may become eligible to be sealed if the offense was later reduced by the legislature to a class 5 or below felony.
Q: I was charged with a felony but ended up pleading guilty to a misdemeanor in the case and taking a deferred judgment and sentence on the felony and probation on the misdemeanor. I successfully completed the deferred judgment and the felony was dismissed. How can I get the felony charge sealed?
A: The disposition you describe is known as a “split plea." In this type of plea deal, the defendant is offered the chance to avoid a felony conviction in exchange for pleading guilty to a lesser charge. The result, in terms of sealing your record, is that you have to wait ten years before the felony is eligible to be sealed. Once the ten years have passed, and if during that ten years there have no new criminal charges, the felony may be sealed.
Q: I no longer live in Colorado, but I have some criminal history from my time there that I would like to have sealed. Do I have to come back to Colorado to make this happen?
A: Not necessarily. A Colorado attorney can file your petition to seal criminal records for you. Upon filing of the petition, the court will set a date for a hearing on the petition. The prosecutor’s office and various law enforcement agencies will be given the opportunity to object to the sealing of your record. If no objection is filed within a certain number of days of the hearing, most courts will vacate the hearing and automatically grant the petition. In general, it is rare for an objection to be filed and for the petition to proceed to hearing, though this will depend on the seriousness of the charges to be sealed and on the nature and extent of other criminal proceedings reflected on the petitioner’s criminal history.
Q: How long will it take to seal my record?
A: If your record is eligible for sealing and everything goes well, plan on it taking at least three months after the filing of your petition for your criminal history to disappear from public background checks. Depending on the jurisdiction, the hearing will be set approximately six weeks after the court receives your petition. After the court grants your petition on or around the hearing date, anticipate that it could take another six weeks or so for the court’s order to take effect at the various agencies responsible for reporting criminal record information.