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Jan 26

Colorado Court Of Appeal Says No to Sealing - Expunging Dismissed DUI

By H. Michael Steinberg Colorado DUI – DWAI _ DUID Criminal Defense Lawyer – Attorney

Colorado Court Of Appeal Says No To Sealing – Expunging A Dismissed DUI – Colorado law permits the sealing – (expunging) of a Colorado criminal cases that has been dismissed as a result of a deferred judgement. In a recent case (2012), In Re The Petition of Harte, that right was removed.

The Colorado Petition To Seal Law24-72-308, C.R.S. (the”sealing statute”) requires that a case be completely dismissed before the case is eligible to be sealed (removed from your criminal history). The successful completion of a deferred judgement and sentence results in the withdrawal of a plea of guilty and the dismissal of the case.

Colorado Court Of Appeal Says No to Sealing – Expunging Dismissed DUI – When Is A Dismissed Case NOT A Dismissed Case?

Under Colorado law the legal definition of a “conviction” is defined based upon the specific statute in which it is used. Stated differently – the term ‘conviction’ has a different meaning and is interpreted depending upon the statute in which the term is found.

One Example – The Sex Crimes Exception

With reference to Colorado sex crimes – the term “conviction” includes a successfully completed and dismissed deferred judgment. Therefore, even if a charge involving unlawful sexual behavior is dismissed after successfully completing a deferred judgment, that person cannot have his or her record sealed.

Even though the Colorado sealing statute does not contain a definition of a “conviction.” See CRS 24-72-308, if the charge that has been dismissed involved a factual basis of unlawful sexual behavior, it cannot be sealed even after a deferred judgement and sentence has been successfully completed and the case completely dismissed.

The DUI Statute – 42-4-130

The successful completion of the terms of ANY deferred judgment MEANS THAT the guilty plea is withdrawn and the case is dismissed WITH PREJUDICE (meaning charges can NEVER be refiled). 18-1.3-102(2), C.R.S.

BUT – the Colorado Courts of Appeal in In Re: Petition of Harte – held that even a successfully completed and dismissed case resulting from a deferred judgment and sentence for an alcohol-related driving offense is – like all sex crimes – STILL a conviction which prevents a record sealing of that crime – DUI – DWAI – or DUID under the Colorado record sealing statute – 24-72-308.

The court concluded, “generally, a successfully completed and dismissed deferred judgment would enable a defendant to petition to seal records under the ‘completely dismissed’ category of the sealing statute.”

The Colorado Court Of Appeals “Reasoning”

The two statutes involved – the sealing statute and the DUI state “have different purposes.” The purpose of the sealing statute is to preserve criminal justice records without harmful effects to individuals and the DUI statute’s penalty sections is to address sentencing and treatment issues regarding repeat alcohol – and drug-related driving offenders.

Conclusion – Colorado Court Of Appeal Says No to Sealing – Expunging Dismissed DUI

Even though a person has the legal right – having successfully completed a deferred judgement and sentence to a DUI – and – if asked on an employment application whether he or she had ever been convicted under section 42-4-1301, C.R.S. 2012, could honestly and legally answer “no,” that same person cannot seal that DUI criminal record. Under the Colorado sealing law – section 24-72-308(1)(f)(I), C.R.S. states “An applicant . . . in answer to any question concerning arrest and criminal records information that has been sealed . . . may state that no such action has ever occurred.

BUT – Colorado law, as it is presently interpreted, does not permit a person to then seal that record.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author – A Denver Colorado DUI – DWAI – DUID Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-227-2277.

H. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 years of day to day courtroom experience – specializing in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. Call now for an immediate free phone consultation. Please call to discuss the topic of this blog Colorado Court Of Appeal Says No To Sealing – Expunging A Dismissed DUI.

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