One of the primary benefits for a defendant in entering into an agreement with the prosecutor for a deferred judgment and sentence is the opportunity for the defendant, upon successful completion of the terms and conditions of the deferred judgment and sentence and the withdrawal of the guilty plea, to have the records relative to the case sealed. However, pursuant to a 2012 decision of the Colorado Court of Appeals, that opportunity is not available to a defendant who has successfully completed a deferred judgment and sentence on an impaired driving offense.
In the case the petitioner (formerly the defendant) was charged with driving under the influence. Pursuant to a plea agreement with the state she received a one-year deferred judgment and sentence. She successfully completed the deferred judgment and sentence and her case was subsequently dismissed. She then sought to have the arrest and criminal records sealed. The court denied her petition to deal the records.
Under the sealing statute one is eligible to seek the sealing of arrest and criminal records, other than those relating to convictions, in three situations: (1) When the person was not charged, (2) when the person was acquitted, or (3) when the case was completely dismissed. There are exceptions to the statute, including that the court may not seal criminal records pertaining to a conviction for alcohol and drug-related driving offenses.
The petitioner argued that because she successfully completed her deferred judgment and sentence, which resulted in the dismissal of her case, she did not have a conviction for an impaired driving offense, and thus that the alcohol-related driving offense exception did not apply to her. In so arguing the Petitioner relied on the definition of conviction in the penalty section of the DUI statute. That definition provides that a conviction includes “having received a deferred judgment and sentence or a deferred adjudication; except that a person shall not be deemed to have been convicted if the person has successfully completed a deferred sentence or deferred adjudication.” Unfortunately for the petitioner the court of appeals disagreed, finding that if the legislature had intended for the definition of conviction contained within the DUI statute to apply to the sealing statute, it would have amended one or the other statute, or both statutes, accordingly. Thus, the court held that the legislature intended the definition of conviction in the alcohol-related driving offenses exception to the sealing statute to include a successfully completed deferred judgment and sentence. Consequently, the court held, the petitioner was statutorily ineligible to seal the records pertaining to the successful completion of her deferred judgment and sentence.
The Supreme Court of Colorado has decided to review the decision of the Court of Appeals. Hopefully Colorado’s highest court will reach the opposite conclusion and hold that because the DUI penalty statute specifically excludes the successful completion of a deferred judgment and sentence from the definition of conviction, one who has successfully completed a deferred judgment and sentence on an impaired driving offense can subsequently have those records sealed.