Drug Cases: Different Rules for Sealing

Caryn J. Adams
Managing Attorney
The Gasper Law Group

To every rule, there is an exception. To the rule that no conviction may be sealed, the exception is criminal conviction records for some offenses involving controlled substances. Pursuant to C.R.S. 24-72-308.5, as of July 1, 2008, a person may petition the court to seal the conviction records for drug offenses at the petty, misdemeanor, or class 5 or 6 felony level. There are, as you might expect, several conditions to be met:

1) The petition has to be filed no sooner than ten years after the final disposition or end of probation, whichever is later; and
2) The petitioner cannot have been charged or convicted for any criminal offense in the intervening ten years; and
3) For convictions entered before July 1, 2008, the district attorney must consent to the sealing of the records.

There are also limitations concerning the types of drug offenses that are subject to sealing. A conviction for a class 5 or 6 felony for the sale, manufacturing, or dispensing of a controlled substance (or conspiracy, attempt, or possession with intent to do any of the above) cannot be sealed. What does that leave at the felony level? Pretty much, it leaves simple possession or attempted possession.


Finally, petitions to seal brought under C.R.S. 24-72-308.5 are more limited in scope than petitions to seal brought under C.R.S. 24-72-308. For one thing, sealing the conviction records does not vacate the conviction. This means that the conviction can be easily unsealed and used as a prior offense in any subsequent prosecution for similar charges. The conviction sealed under this subsection may also be used by a criminal justice agency, law enforcement agency, court, or prosecutor for any lawful purpose. The conviction will also show up on criminal history records checks that are required by law. In fact, the only real benefit to having your drug-related conviction sealed under this subsection is that it allows you to tell private employers, landlords, and some local and state agencies that you have not been criminally convicted and prohibits them from requiring you to disclose any information concerning the sealed conviction records.