The Blog


Sealing Criminal and Arrest Records in Colorado

Posted by on

Colorado law allows a person who is the primary subject of a criminal justice record to petition the court in the district in which any arrest and criminal records information pertaining to that person is located to seal those records (except for basic identification information) in the following circumstances:

  • If the records are a record of official actions involving a criminal offense for which the person was not charged or entered into a diversionary program;
  • If the case was completely dismissed; or
  • If the person was acquitted of all of the charges.

Arrest or criminal record information may not be sealed if an offense is not charged due to a plea agreement in a separate case, a dismissal occurs as part of a plea agreement in a separate case, or a defendant still owes restitution, fines, court costs, or other fees n the case.

After one files a petition to seal criminal records, and after the court finds that the petition is sufficient on its face and that no other grounds exist at that time for the court to deny it, a hearing is set and the petitioner is required to inform the prosecutor’s office, and any other agencies having possession of the records.  After the hearing described 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 that the records be sealed.

If the court seals your criminal records you may properly reply to any inquiry regarding the records that no such records exist.  Employers, educational institutions, state and local government agencies, officials, and employees are not allowed, in any application or interview or in any other way, require an applicant to disclose any information contained in sealed records.

Felony Sentencing in Colorado

Posted by on

For many charged with a crime the sentence which could be imposed is often times their main concern.  While there are many statutes which govern criminal sentencing in Colorado, in many respects sentencing is the least regulated stage of a criminal case.  Colorado trial court judges are granted wide discretion in their imposition of individual sentences.  The Colorado Supreme Court has held that sentencing is a discretionary decision which requires the court to balance the public’s interest in safety and deterrence of crime against the defendant’s need and ability for rehabilitation or corrective treatment.  Even in those cases where a defense attorney has eliminated incarceration as an alternative, possible sanctions including probation, restitution, fines, and court costs and fees may still have a significant impact on a criminal defendant.  When facing a criminal charge in Colorado, it is important to consult with and be represented by a  attorney who is well versed in Colorado sentencing and procedure.

Felony Sentences

FELONIES COMMITTED ON OR AFTER JULY 1, 1993

 

Presumptive Range

Exceptional Circumstances

Class

Minimum

Maximum

Minimum

Maximum

Mandatory Parole

1

Life Imprisonment

Death

Life Imprisonment

Death

 

2

8 years

$5,000 fine

24 years

$1,000,000 fine

4 years

48 years

5 years

3

Extraordinary Risk Crime

4 years

$3,000 fine

4 years

$3,000 fine

12 years

$750,000 fine

16 years

$750,000 fine

2 years

2 years

24 years

32 years

5 years

5 years

4

Extraordinary Risk Crime

2 years

$2,000 fine

2 years

$2,000 fine

6 years

$500,000 fine

4 years

$100,000

1 year

1 year

12 years

16 years

3 years

3 years

5

Extraordinary Risk Crime

1 year

$1,000 fine

1 year

$1,000 fine

3 years

$100,000 fine

4 years

$100,000 fine

6 months

6 months

6 years

8 years

2 years

2 years

6

Extraordinary Risk Crime

1 year

$1,000 fine

1 year

$1,000 fine

18 months

$100,000 fine

2 years

$100,000 fine

6 months

6 months

3 years

4 years

 

 

A term of imprisonment for a felony conviction is served in a state correctional facility.

 

Misdemeanor Sentencing in Colorado

Posted by on

For many charged with a crime the sentence which could be imposed is often times their main concern.  While there are  many statutes which govern criminal sentencing in Colorado, in many respects sentencing is the least regulated stage of a criminal case.  Colorado trial court judges are granted wide discretion in their imposition of individual sentences.  The Colorado Supreme Court has held that sentencing is a discretionary decision which requires the court to balance the public’s interest in safety and deterrence of crime against the defendant’s need and ability for rehabilitation or corrective treatment.  Even in those cases where a defense attorney has eliminated incarceration as an alternative, possible sanctions including probation, restitution, fines, and court costs and fees may still have a significant impact on a criminal defendant.  When facing a criminal charge in Colorado, it is important to consult with and be represented by a  attorney who is well versed in Colorado sentencing and procedure.

Misdemeanor Sentences

Misdemeanors are divided into three classes, which are distinguished from one another by the penalties authorized upon conviction.

Class

Minimum Sentencing

Maximum Sentence

1

Six months imprisonment, or five hundred dollar fine, or both.

Eighteen months imprisonment, or five thousand dollars fine, or both.  The maximum is increased to 24 months for “extraordinary risk crimes.”

2

Three months imprisonment, or one thousand dollars fine, or both.

Twelve months imprisonment, or one thousand dollars fine, or both.

3

Fifty dollars fine.

Six months imprisonment, or seven hundred fifty dollars fine, or both.

 

A term of imprisonment for a misdemeanor conviction is served in county jail unless it is served concurrently with a term of imprisonment for conviction of a felony, in which case it is served in a state correctional facility.

Colorado’s Driver’s License Point System

Posted by on

Colorado employs a driver’s license point system.  Each conviction for a traffic violation in Colorado is reported to the DMV.  Each conviction carries a certain number of points to be placed on your driving record.  Accumulating too many points in a certain period of time will result in the loss of your driving privilege through a point suspension.

Point accumulations that will result in suspensions are as follows:

Adult Driver (21 and over): 12 points in any 12 consecutive months or 18 points in any 24 consecutive months.

Minor Driver (18-20 years of age):  9 points in any 12 consecutive months, 12 points in any 24 months, or 14 or more points between the ages of 18 and 21.

Under the Age of 18:  6 points in 12 consecutive months or 7 points prior to turning 18.

The time periods for the accumulation of points are based on the date of the violation, but the points are not assessed until after conviction of the traffic offense.  The state is required to notify you when any action is taken against your driver’s license.  If an accumulation of points causes your driver’s license to be suspended, a notice will be sent to the last address the DMV has on file for you.  The notice will provide a hearing date.  If you do not appear for that hearing, your driver’s license will be suspended for one year.  A hearing can be requested at any time within that year.

At the hearing the hearing officer will determine whether a point suspension is required as well as the length of the suspension.  The decision whether to grant the suspended driver a probationary license is within the discretion of the hearing officer.

A conviction for driving while one’s driver’s license is suspended carries with it a mandatory jail sentence of 5 days as well as further administrative sanctions against one’s driving privilege.

When facing an allegation of a traffic violation that may result in a driving privilege point suspension it is important to consult with an experienced Colorado traffic attorney knowledgeable in the Colorado point system and DMV hearings.

Traffic Violation Points

Traffic Violation

Points

Leaving the Scene of an Accident

12

DUI or DUI per se

12

DUI – Habitual User

12

Driving While Ability Impaired

8

Underage Drinking and Driving

4

Engaging in a Speed Contest

12

Engaging in a Speed Exhibition

5

Reckless Driving

8

Careless Driving

4

Careless Driving Resulting in Death

12

Speeding – 1 -4 mph over reasonable prudent speed limit or 75mph speed limit

0

Speeding – 5-9 mph over reasonable prudent speed limit or 75mph speed limit

1

Speeding – 10-19 mph over reasonable prudent speed limit or 75mph speed limit

4

Speeding – 20-39 mph over reasonable prudent speed limit or 75mph speed limit

6

Speeding – 40 mph over reasonable prudent speed limit or 75mph speed limit

12

Failure to reduce speed below an otherwise lawful speed when a special hazard exists

3

One to four miles per hour over the maximum lawful speed limit of forty miles per hour driving a low-power scooter

0

Five to nine miles per hour over the maximum lawful speed limit of forty miles per hour driving a low-power scooter

2

Greater than nine miles per hour over the maximum lawful speed limit of forty miles per hour driving a low-power scooter

4

Failure to stop for school signals

6

Driving on wrong side of road or driving on wrong side of divided or controlled-access highway

4

Improper passing

4

Failure to stop for school bus

6

Following too closely

4

Failure to observe traffic sign or signal

4

Failure to yield to emergency vehicle

4

Failure to yield right-of-way

3

Improper turn

3

Driving in wrong lane or direction on one-way street

3

Failure to signal or improper signal

2

Improper backing

2

Failure to dim or turn on lights

2

Operating a vehicle with defective head lamps

1

Eluding or attempting to elude a police officer

12

Alteration of suspension system

3

Failure to yield right-of-way to pedestrian

4

Failure to yield right-of-way to person with a disability

6

Failure to maintain or show proof of insurance

4

Driving with a passenger who is under twenty-one years of age or driving between 12 midnight and 5 a.m.

2

 

Driving Under the Influence v. Driving Under the Influence Per Se

Posted by on

A driver arrested for driving under the influence in Colorado may also be charged with driving under the influence per se.  The two are separate offenses.

DUI is defined as “driving a motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, that affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.”

In order to convict a driver of driving under the influence the state must prove, amongst other elements, beyond a reasonable doubt that the person was “substantially incapable” of safely operating a motor vehicle.

Thw Driving Under the Influence per se law reads differently than the above.  In Colorado it is a misdemeanor “for any person to drive a motor vehicle or vehicle when the person’s BAC is 0.08 or more at the time of driving or within two hours after driving. During a trial, if the state’s evidence raises the issue, or if a defendant presents some credible evidence, that the defendant consumed alcohol between the time that the defendant stopped driving and the time that testing occurred, such issue shall be an affirmative defense, and the prosecution must establish beyond a reasonable doubt that the minimum 0.08 blood or breath alcohol content required in this paragraph (a) was reached as a result of alcohol consumed by the defendant before the defendant stopped driving.”

The most significant difference between the driving under the influence law and driving under the influence per se law (embodied within the same statute – 42-4-1301) is that the state in a DUI per se prosecution is not required to prove beyond a reasonable doubt that the person was “substantially incapable” of operating a motor vehicle or vehicle.

Under Colorado drunk driving law during the trial of any person accused of both DUI and DUI per se the court cannot require the state to elct between the two offenses.  Thus, the court or a jury may consider and convict the defendant of either DUI or DWAI, or DUI per se, or both DUI and DUI per se, or both DWAI and DUI per se.

However, if the defendant is convicted of more than one violation the sentences imposed do not run consecutively.

Note that a defendant charged with DUI per se has available to them  the affirmative defense that they consumed alcohol between the time that they stopped driving and the time the testing occurred.  If the defendant is able to present credible evidence to that effect, the state must then prove beyond a reasonable doubt that the .08 blood or breath alcohol content was reached as a result of alcohol consumed by the defendant before the defendant stopped driving.

 

Can I Use Marijuana While on Probation in Colorado?

Posted by on

Although the use of medical marijuana has been legal in Colorado for years, and recreational use is now legal, those subject to probation are not allowed to use marijuana.  A positive test for marijuana can result in one’s probation being revoked, which can then lead to a sentence to jail depending on the circumstances.

The Colorado Court of Appeals took up the issue in 2012 in State v. Leonard Charles Watkins (see the court order here).  The Court considered two issues:

 

  • Does the statutorily mandated condition of probation requiring a probationer not to “commit another offense” while on probation include commission of offenses under federal law; and
  • Does article XVIII, section 14 of the Colorado Constitution (the Medical Use of Marijuana Amendment or the Amendment) permit a court to enter a probation order that would have the effect of exempting a probationer who obtains a registry identification card from complying with federal criminal statutes outlawing possession and use of marijuana for purposes of the mandatory probation condition?

As to the first question, the Court held that the commission of a federal offense is contemplated by the probation statute.  As to the second issue the Court held that the applicable section of the Colorado Constitution does not permit a court to enter a probation order that would exempt a probationer from complying with federal criminal statutes outlawing possession and use of marijuana.

The Watkins case was decided in 2012, prior to the legalization of the recreational use of marijuana in Colorado. However, given that the decision rested on the fact tat marijuana is still illegal under federal law there is very little likelihood the result would any different post Amendment 64.

Thus it appears that unless and until marijuana becomes legal under federal law those on probation in Colorado (or those subject to pre-trial monitoring) will not be allowed to use marijuana, whether for medical purposes or not.

 

Deferred Judgment and Sentence in Colorado Criminal Sentencing

Posted by on

A court is authorized under Colorado law, with the written consent of the defendant, the district attorney, and defense counsel, to defer judgment and sentence when accepting a guilty plea.  Pursuant to a deferred judgment and sentence, a defendant is required to enter a guilty plea.  However, judgment does not enter on the guilty plea unless the defendant violates the conditions of the deferred sentence agreement between the defendant and the district attorney.

Under a deferred judgment and sentence the case is continued for a period of time during which the defendant is almost always subject to probation.  The terms and conditions of the deferred sentence agreement can be the same as the terms and conditions to a straight guilty plea, and can include fines, court costs, useful public service, and drug and alcohol monitoring.  Judgment and sentence can be deferred on  a misdemeanor for a period of up to two years and on a felony for a period of up to four years.  Once a defendant fully complies with the specified conditions of the deferred agreement the plea is automatically withdrawn and the case, or the charge, is dismissed.

If a defendant violates any condition of the deferred agreement the district attorney or the defendant’s probation officer can ask the court to revoke the deferred sentence.  If a court finds that the defendant has violated the agreement, it is required to enter judgment and impose sentence upon the guilty plea.