Governor Signs Criminal Record Sealing Bill

Many people don't realize that any time a person is charged with a criminal offense, regardless of disposition, a record is created in one or more databases and/or archives. This information can show up on background checks for job applications and the like. Governor Ritter this week signed into law HB08-1082, which makes significant changes to the law regarding the sealing of criminal records. Previously, a person could NOT seal the record of a criminal conviction regardless of the offense. The new law makes two important changes in favor of persons with criminal records. First, persons can now petition to seal the record of criminal charges dismissed as the result of a plea bargain in another case after waiting only ten years instead of the previous fifteen. Secondly, and more importantly, persons sustaining actual convictions for petty offenses, misdemeanors, or class 5 or 6 felonies for drug possession charges can petition to seal the record of conviction after ten years following completion of sentence. Please note that this second change applies only to possession charges and does NOT apply to charges involving the sale, manufacture or dispensing of controlled drugs. It also applies to drug offenses only--convictions for all other types of offenses still cannot be sealed. The new law is effective July 1, 2008.

Records can be sealed only upon court order after showing the requisite statutory period has passed, that the petitioner has committed no new criminal offenses in the interim and he/she has satisfied all requirements of sentencing, including payment of all monies owed the court. The ultimate decision whether to grant a petition to seal any criminal record still resides with the court alone and a petition does NOT necessarily mean records will actually be sealed. Issues pertaining to the sealing of criminal records can be complicated and competent counsel should be consulted.

New revocation terms and reinstatement requirements begin January 1, 2009

Last week, Governor Ritter signed HB08-1194, described below, which will, among other things, increase the revocation period from three to nine months for first-time DUI suspects who test over the .08 limit. The new law takes effect January 1, 2009.

House OKs Legislation to Extend Alcohol Suspensions

Last week, the Colorado House passed HB1194, which extends mandatory revocations and suspensions of drivers licenses for alcohol-related offenses. Most noteworthy is the extension of first-time revocations of persons testing over the .08 limit from the current 3-month period to 9 months. First-time offenders would be eligible to apply for a restricted license with ignition interlock after a minimum revocation period of 30 days. The bill also more than doubles the current reinstatement fee from $60 to $130. If enacted, the new law would go into effect January 1, 2009.

New Regs Require Formal Advisement on Test Choice

New Colorado Department of Revenue Regulations pertaining to Express Consent revocations now require officers who invoke the Express Consent law to specifically advise drivers that (1) they may elect either a blood or breath test; (2) that if they choose a breath test a second sample for independent chemical testing will NOT be preserved; and (3) failure to take and/or complete a blood or breath test will result in a one-year revocation of the driver's license.

This is an important regulation that overrules decades of legal precedent which held that there was no requirement for an officer to offer a choice of chemical tests under the Express Consent law. Now, failure to specifically offer a choice of tests is in direct contravention of Colorado Department of Revenue Regulations.

Note the other new regulation mentioned above--second breath samples for independent chemcial testing will no longer be preserved. Drivers who submit to a breath test must now submit two separate breath samples, which will be measured and recorded, with the lowest of the two measurements determining BrAC. Blood tests will continue to draw two blood samples, with one held for independent testing.

DUI Test Bill Going to Governor

Senate Bill 154, which will require drivers suspected of DUI to take a different chemical test from the one they choose if an officer is unable to administer the original choice of test, has been approved by the General Assembly and is expected to be signed by Governor Ritter. Current Colorado law requires that, if a driver suspected of DUI elects a specific chemical test of his/her blood or breath, then that test must be administered. Under the new law, if a driver elects a specific test that cannot be administered through no fault of law enforcement, an officer can require the driver to complete a different type of test--refusal to complete the substitute test would result in a one-year suspension of the driver's license. This bill was introduced following the Supreme Court's ruling earlier this year in Turbyne v. People, discussed below.

DUI Bill Rejected by House Judiciary Committee

HB1189, discussed below, was defeated in the House Judiciary Committee March 7. The bill, which would have mandated interlock devices on vehicles driven by those convicted of DUI/DWAI and greatly increased driver's license suspensions following such convictions, lost on a 7-4 vote. The failure of this bill does not spell the end of the effort to change Colorado's DUI laws--a state "DUI Task Force" commissioned by the General Assembly is expected to make recommendations later this year on how to improve the current DUI statutes, most of which have been in place for over twenty years.

DUI Bill Would Mandate Interlock Devices

Colorado House Bill 1189, sponsored by Rep. Joel Judd (D-Denver), would limit first-time DUI offenders to restricted licenses requiring ignition interlock devices on the vehicles they drive for five years following conviction. Offenders with prior convictions would be required to maintain a restricted interlock license for twenty years. Current law mandates a one-year suspension without probationary or restricted licenses for first-time DUI offenders and a two-year suspension with eligibility for a restricted license after one year for offenders with a prior conviction. The 5- and 20-year suspension periods set forth in HB1189 do not include revocations under the Express Consent law, which mandates a three-month revocation for failing a blood/breath alcohol test in conjunction with driving, and a one-year revocation for refusing such a test.

Ignition interlock devices require that a driver submit an alcohol-free breath sample before the automobile can be started.