Colorado § 24-72-704 - Sealing of arrest records when no charges filed - automatic sealing.

§ 24-72-704. Sealing of arrest records when no charges filed - automatic sealing.

(1) (a) Any person in interest may petition the district court of the district in which any arrest and criminal records information pertaining to the person in interest is located for the sealing of all of the records, except basic identification information, if the records are a record of official actions involving a criminal offense for which the person in interest:

(I) Completed a diversion agreement pursuant to section 18-1.3-101 and no criminal charges were ever filed;

(II) Was not charged and the statute of limitations for the offense for which the person was arrested that has the longest statute of limitations has run; or

(III) Was not charged and the statute of limitations has not run but the person is no longer being investigated by law enforcement for commission of the offense.

(b) 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 that accurately and completely identifies the records to be sealed.

(c) (I) Upon the filing of a petition, the court shall review the petition and determine whether the petition is sufficient on its face. 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 pursuant to this section, the court shall enter an order denying the petition and mail a copy of the order to the petitioner or, as permitted, serve the order pursuant to Colorado supreme court rules. The court's order must specify the reasons for the denial of the petition.

(II) 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 pursuant to this section, the court shall set a date for a hearing at least thirty-five days after the determination and notify the prosecuting attorney, the arresting agency, and any other person or agency identified by the petitioner of the hearing date. If no objection is received by the court seven days prior to the hearing date, the court shall vacate the hearing and order such records, except for basic identification information, to be sealed. If an objection is filed and the court determines at a hearing or otherwise that the objection provides facts that make the petitioner ineligible for sealing of the arrest records, the court shall deny the petition and provide a copy of the order to the petitioner. The court's order must specify the reasons for the denial of the petition. If the objection does not provide facts that make the petitioner ineligible for sealing of the arrest records, the court shall order such records, except basic identification information, to be sealed.

(d) 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.

(1.5) (a) On its own motion, the court shall order the defendant's criminal justice records sealed when the district attorney notifies the court that a person in interest meets one of the conditions of subsection (1) of this section to facilitate sealing of the records held by the court.

(b) The court shall not require a written motion or any other written pleadings for sealing pursuant to this section. The court shall enter an order sealing records pursuant to this subsection (1.5) at the time of notice and shall serve the sealing order pursuant to section 24-72-703 (8) no later than twenty-eight days after the date of sealing.

(c) If the automatic sealing of a criminal record does not occur, the defendant may file a motion to seal the criminal case at any time subsequent to the district attorney's notice through the filing of a written motion pursuant to subsection (1) of this section. The court shall not charge or assess the defendant any fees or costs associated with filing a motion pursuant to this subsection (1.5)(c).

(d) This section does not apply to records that are subject to the procedure set forth in section 18-13-122 (13).

(2) (a) For arrests on or after January 1, 2022, the Colorado bureau of investigation in the department of public safety shall automatically seal an arrest record that is in its custody and control of a person when no criminal charges have been filed within one year of the date of the person's arrest. If the Colorado bureau of investigation does not receive documentation of the filing of criminal charges matching arrest records in its custody and control from a court or another state or local agency or office within one year of the date of arrest, the bureau shall seal the arrest records. The Colorado bureau of investigation is not required to conduct any independent investigation of whether criminal charges have been filed and is not required to seal any arrest records not in its custody and control. An arrest record eligible for sealing pursuant to this subsection (2)(a) must be sealed within sixty days after the year has passed since the person's arrest date. If the Colorado bureau of investigation receives notice of filed charges after it sealed the record, the bureau shall immediately unseal the record.

(b) (I) For arrests without a conviction after January 1, 2019, but before January 1, 2022, the Colorado bureau of investigation shall automatically seal an arrest record that is in its custody and control of a person when no criminal charges have been filed:

(A) Within three years after the date of arrest for a felony offense for which the statute of limitations is three years; or

(B) Within eighteen months after the date of arrest for a misdemeanor offense, a misdemeanor traffic offense, a civil infraction, a petty offense, a municipal ordinance violation for which the statute of limitations is eighteen months or less, or if there is no indication of the classification of the crime in the arrest data.

(II) If the Colorado bureau of investigation does not receive documentation from a court or another state or local agency or office that criminal charges have been filed within the time periods provided in subsection (2)(b)(I) of this section, the bureau shall seal the arrest records in its custody and control. The Colorado bureau of investigation is not required to conduct any independent investigation of whether criminal charges have been filed and is not required to seal any arrest records not in its custody and control. If the Colorado bureau of investigation receives notice of filed charges after it sealed the record, the bureau shall immediately unseal the record.

(III) This subsection (2)(b) only applies to criminal arrest records that the Colorado bureau of investigation has custody and control over in an electronic format.

(IV) (A) For arrest records with no conviction that are from 2013 to 2018, the Colorado bureau of investigation shall seal the records by January 1, 2023.

(B) For arrest records with no conviction that are from 2008 to 2012, the Colorado bureau of investigation shall seal the records by January 1, 2024.

(C) For arrest records with no conviction that are from 2003 to 2007, the Colorado bureau of investigation shall seal the records by January 1, 2025.

(D) For arrest records with no conviction that are from 1997 to 2002, the Colorado bureau of investigation shall seal the records by January 1, 2026.

(E) For any other arrest records with no conviction, the Colorado bureau of investigation shall seal the records by January 1, 2027.

(V) Arrest records for a felony offense with a statute of limitations of more than three years or with no statute of limitations pursuant to section 16-5-401 are not eligible for sealing under this subsection (2).

(3) Notwithstanding subsection (2) of this section, the Colorado bureau of investigation shall develop a process to allow an approved treatment provider providing treatment pursuant to section 16-11.7-103 (4) or 16-11.8-103 (4) access to sealed arrest records. A treatment provider shall not use records accessed pursuant to this subsection (3) for any other purpose.

(4) The provisions of section 24-72-703 (2) apply to an arrest record sealed pursuant to this section.

(5) Sealing of arrest records under this section does not impair the ability of the department of education to access and use sealed records in connection with background checks, investigations, and disciplinary actions conducted under article 60.5 of title 22.

(6) (a) Beginning November 1, 2023, and annually thereafter, the Colorado bureau of investigation shall report the number of arrest records sealed to the judiciary committees of the senate and the house of representatives, or their successor committees, by judicial district and, to the extent possible, with data disaggregated by race and sex and by offense level.

(b) Notwithstanding section 24-1-136 (11)(a)(I), the report required in this subsection (6) continues indefinitely.

Source: L. 2019: Entire part R&RE, (HB 19-1275), ch. 295, p. 2738, § 1, effective August 2. L. 2021: (2), (3), (4), and (5) added, (HB 21-1214), ch. 455, p. 3031, § 6, effective September 7. L. 2022: (1)(d) and (2)(b)(I)(B) amended and (6) added, (SB 22-099), ch. 276, p. 1990, § 11, effective August 10. L. 2024: (1.5) added, (HB 24-1133), ch. 384, p. 2619, § 3, effective July 1, 2025.

ANNOTATION

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). For article, "2021 Updates on Sealing Criminal Records", see 51 Colo. Law. 22 (May 2022).

Annotator's note. The following annotations include cases decided under former provisions similar to this section.

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).

Because this section does not resolve whether successive sealing actions are permissible, the common law doctrine of claim preclusion applies. F.M. v. People, 298 P.3d 991 (Colo. App. 2011).

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).

When determining if case falls under the exception in subsection (3)(c), a guilty plea to an offense that involved sexual behavior constitutes a "conviction", even if conviction was subsequently dismissed under a deferred judgment. M.T. v. People, 275 P.3d 661 (Colo. App. 2010), aff'd, 2012 CO 11, 269 P.3d 1219.

Exception for crimes involving unlawful sexual behavior applies to convictions that have been subsequently dismissed under a deferred judgment. Text of statute suggests that records do not have to pertain to only extant convictions; such a construction is necessary to avoid rendering exception meaningless; and legislative intent was that exception should apply to records of all convictions involving unlawful sexual behavior, regardless of whether conviction was extant. M.T. v. People, 275 P.3d 661 (Colo. App. 2010), aff'd, 2012 CO 11, 269 P.3d 1219.

Exception for crimes involving alcohol-related driving offenses applies to convictions that have been subsequently dismissed under a deferred judgment. In re Harte, 2012 COA 183, 337 P.3d 1232.

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).

Subsection (3)(a)(I) applies to charges and not merely convictions, that is, although the exception refers to an "offense", that term is sufficiently broad to include a charge that does not result in a conviction. Clark v. People, 221 P.3d 447 (Colo. App. 2009).

Partial sealing. Nothing in this section permits the partial sealing of a record where any portion of the record may not be sealed pursuant to subsection (3). Clark v. People, 221 P.3d 447 (Colo. App. 2009), overruled in In re R.C., 2013 COA 77, 309 P.3d 954.

Criminal justice records of an arrest and charges, which include both traffic and non-traffic offenses, can be sealed as to the non-traffic offenses. The statute does not appear to contemplate petitions to seal records for cases that include both traffic offenses and non-traffic offenses. In re R.C., 2013 COA 77, 309 P.3d 954 (overruling Clark v. People, 221 P.3d 447 (Colo. App. 2009).

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).

Parties may not waive applicable waiting period in order to petition for record sealing. Robertson v. People, 2017 COA 143M, 410 P.3d 1277.

Court erred in granting petition to seal records. The court made three errors in granting the petition: (1) The court considered the impact of the criminal records of three convictions collectively rather than separately; (2) the court did not discuss the factors relevant to the balancing test; and (3) defendant did not present evidence of harm to his privacy or the dangers of unwarranted adverse consequences from his criminal record, his attorney only argued those points. Robertson v. People, 2017 COA 143M, 410 P.3d 1277.

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).