FAQ: What Is Expungement And Court Records Sealing?

First of all, records expungement and records sealing are exactly the same things. “Expunged” and “sealed” are terms that can be used interchangeably. Second, what having your records expunged or sealed means is that they won’t show up during a background check and won’t be available as a matter of public record.

Interestingly, records expungement and court records sealing are among the most common requests that we get at Krizman Law… but the interest has spiked just recently which makes one wonder: why is it such a common request these days?

What’s been going on over the last decade or so in what we call criminal justice reform is that the laws have been getting easier and easier to make things more and more available to be sealed. For the most part, unless it is the most aggravated of felonies or simple traffic matters (i.e., the least aggravated), almost everything else “in the middle” has the potential to be sealed at some point.

Now with the way that these laws have been rewritten, what’s happening is there’s more access to getting your records sealed. Back in 2019, very few people were interested in this topic. However, in 2022, since the COVID pandemic and the “Great Resignation,” people are looking for new employment at unprecedented rates, and they’re coming into contact with their past indiscretions more than they ever would have before.

So people are either proactively wanting to get their records sealed, or they applied for a job, and their past came back to haunt them. So then, people are wondering: “How do I get this 1993 felony expunged from my record?”

Unfortunately, the ability to have certain cases expunged is too fact-specific to be able to make a list and say “the following types of cases are able to be sealed” at this point. But, in general, if a case is completely dismissed, it should be able to be sealed right away. If you completed a straight deferred judgment that wasn’t part of any other plea agreement, you should be able to seal that when the case is closed, you’re off of probation, and the prosecution dismisses the guilty plea. And, if you were, in fact, convicted, then it’s just a matter of how long after you’re off of probation until you can petition the court to have the thing sealed. The next question is: what are the interests?

So, for example, if you have a drug felony from 1998, and you want to seal it, and you were convicted, you do not have a right to have it sealed. But, more than likely, enough time has passed since you completed your probation or parole that you can now petition the court to have it sealed. And so you will provide information to the court that says, “Hey, I’m not going around committing a bunch of other felonies; this one is worth getting sealed, right? The detriment to me, having it available in public is much higher than any community safety concerns of having it still available.” So that’s what you do when there’s a conviction.

The other development in the legal environment is that it’s now been made much easier to petition to have your records sealed. You used to have to start a different civil case number and file all this additional paperwork, etc. These days, the laws are at least such that you don’t have to have a different case; you file the paperwork, there are instructions online, and a lot of times, you can even do it without an attorney.

In fact, I specifically tell the people whom I’m representing on the underlying crimes, “I don’t do your record sealing. That’s something that you need to make specific arrangements for.” And then, at the end, I tell people, “Here’s how to get your record sealed; you can do it yourself, but if you want me to do it, you can certainly pay me more money, and I’ll do it for you.” Or, sometimes, there are folks that I didn’t represent in their cases who call me specifically looking just for help sealing their records.

There are a few big questions to ask if you’re seeking to have your records expunged. Those are:

Were you actually convicted of a crime?

Or were you just accused, and the case was dismissed? Or did you plead guilty as a deferred judgment, and then the case was dismissed? That’s your number one consideration: if it’s a conviction versus dismissal. (Because a deferred judgment does not include a conviction as long as you complete probation). In Colorado, there are specific statutes, 24.72.706 is for convictions, 24.72.705 is for things other than convictions, etc. So, again, the first question is, were you convicted, or was it dismissed as part of a plea agreement or because they couldn’t prosecute you, or no charges were filed?

How long ago were you off of supervision?

How long has it been since probation ended? Has it been a few months, or many years, or decades?

Have you committed any crimes in the meantime?

Can you show the courts that your record has been clean since the original case?

How long ago was your case, and what is the level of community safety?

For instance, courts are going to be more inclined to seal a felony drug record from 1992 than they are if it was in 2008. And more generally, they’ll look more favorably on your request if it was a marijuana possession charge than a heroin distribution charge. So that speaks to the level of community safety risk.

Another thing to consider is prior felonies. If your charges were for something that would no longer be a felony if it happened today, there is a way to argue with the judge that they shouldn’t be counted as felonies for sentencing now. Certainly, if you’re trying to get your record sealed, if that marijuana drug felony would no longer be a marijuana drug felony today, that’s a big argument for why it should be sealed. And as far as the time involved, in general, the whole process should take a couple of months.

I hope this is a helpful explanation of the nuances of court records sealing and expungement.