Second Regular Session Sixty-ninth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 14-1078.01 Michael Dohr x4347 SENATE BILL 14-218 SENATE SPONSORSHIP Ulibarri and Marble, HOUSE SPONSORSHIP Singer and Melton, Salazar Senate Committees House Committees Judiciary A BILL FOR AN ACT Concerning requiring a conviction record for a marijuana offense that would have been legal under section 16 of article XVIII of the state constitution to be sealed when a person applies for the record sealing. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill allows anyone who was convicted of a marijuana offense that would not have been illegal had amendment 64 been in effect at that time to request sealing of the conviction record. The court shall seal the conviction record after the person applies and pays the filing fee. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, add 24-72-308.4 as follows: 24-72-308.4. Sealing of criminal conviction records for marijuana convictions. (1) (a) If a person was convicted of an offense under section 18-18-406, C.R.S., that would not have been an offense had section 16 of article XVIII of the Colorado constitution been in effect at the time of the offense, he or she may petition the district court of the district in which the conviction record pertaining to the defendant's conviction is located for the sealing of the conviction records, except for basic identifying information. (b) If a petition is filed pursuant to paragraph (a) of this subsection (1) for the sealing of a record of marijuana conviction, the court shall order the record sealed after: (I) The petition is filed; and (II) The filing fee is paid. (2) A petition to seal a conviction record pursuant to this section must include a listing of each custodian of the records to whom the sealing order is directed and any information that accurately and completely identifies the records to be sealed. The defendant shall submit with the petition, at the time of filing or no later than the tenth day after the petition is filed, a verified copy of the defendant's criminal history, current through at least the twentieth day prior to the date of the filing of the petition. The defendant is responsible for obtaining and paying for the verified copy of his or her criminal history. Whenever a court enters an order sealing conviction records pursuant to this section, the defendant shall provide the Colorado bureau of investigation and each custodian of the conviction records with a copy of the order and shall pay to the bureau any costs related to the sealing of his or her criminal conviction records that are in the custody of the bureau. Thereafter, the defendant may request and the court may grant an order sealing the civil case in which the conviction records were sealed. (3) An order sealing conviction records does not deny access to the criminal records of a defendant by any court, law enforcement agency, criminal justice agency, prosecuting attorney, or party or agency required by law to conduct a criminal history record check on an individual. An order sealing conviction records does not vacate a conviction. A conviction sealed pursuant to this section may be used by a criminal justice agency, law enforcement agency, court, or prosecuting attorney for any lawful purpose relating to the investigation or prosecution of any case, including but not limited to any subsequent case that is filed against the defendant, or for any other lawful purpose within the scope of his, her, or its duties. If a defendant is convicted of a new criminal offense after an order sealing conviction records is entered, the court shall order the conviction records to be unsealed. A party or agency required by law to conduct a criminal history record check is authorized to use any sealed conviction for the lawful purpose for which the criminal history record check is required by law. (4) A defendant may petition the court for the sealing of conviction records pursuant to this section only once during any twelve-month period. The court shall dismiss a second or subsequent petition filed within any twelve-month period. (5) A petition to seal conviction records pursuant to this section must include a listing of each custodian of the records to whom the sealing order is directed and any information that accurately and completely identifies the records to be sealed. (6) Except as otherwise provided in subsection (3) of this section, upon the entry of an order to seal the conviction records, the defendant and all criminal justice agencies may properly reply, upon an inquiry in the matter, that public conviction records do not exist with respect to the defendant. (7) Except as otherwise provided in subsection (3) of this section, inspection of the records included in an order sealing conviction records may thereafter be permitted by the court only upon petition by the defendant. (8) (a) Except as otherwise provided in subsection (3) of this section, employers, state and local government agencies, officials, landlords, and employees shall not, in any application or interview or in any other way, require an applicant to disclose any information contained in sealed conviction records. An applicant need not, in answer to any question concerning conviction records that have been sealed, include a reference to or information concerning the sealed conviction records and may state that the applicant has not been criminally convicted. (b) The provisions of paragraph (a) of this subsection (8) do not preclude the bar committee of the Colorado state board of law examiners from making further inquiries into the fact of a conviction that comes to the attention of the bar committee through other means. The bar committee of the Colorado state board of law examiners has a right to inquire into the moral and ethical qualifications of an applicant, and the applicant does not have a right to privacy or privilege that justifies his or her refusal to answer a question concerning sealed conviction records that have come to the attention of the bar committee through other means. (c) Notwithstanding the provisions of paragraph (a) of this subsection (8), the department of education may require a licensed educator or an applicant for an educator's license who files a petition to seal a criminal record to notify the department of education of the pending petition to seal. The department has the right to inquire into the facts of the criminal offense for which the petition to seal is pending. The educator or applicant has no right to privacy or privilege that justifies his or her refusal to answer any questions concerning the arrest and criminal records information contained in the pending petition to seal. (d) Any member of the public may petition the court to unseal any file that has been previously sealed upon a showing that circumstances have come into existence since the original sealing, and, as a result, the public interest in disclosure now outweighs the defendant's interest in privacy. (9) The office of the state court administrator shall post on its web site a list of all petitions to seal conviction records that are filed with a district court. A district court may not grant a petition to seal conviction records until at least thirty days after the posting. After the expiration of thirty days following the posting, the petition to seal conviction records and information pertinent thereto shall be removed from the web site of the office of the state court administrator. (10) Nothing in this section authorizes the physical destruction of any conviction records. (11) Notwithstanding any provision in this section to the contrary, in regard to any conviction of a defendant resulting from a single case in which the defendant is convicted of more than one offense, records of the conviction may be sealed pursuant to the provisions of this section only if the records of every conviction of the defendant resulting from that case may be sealed pursuant to the provisions of this part 3. (12) Rules of discovery - rules of evidence - witness testimony. Court orders sealing records of official actions pursuant to this section do not limit the operations of: (a) The Colorado rules of civil procedure related to discovery or the Colorado rules of evidence promulgated by the supreme court of Colorado or any other state or federal court; or (b) The provisions of section 13-90-101, C.R.S., concerning witness testimony. SECTION 2. In Colorado Revised Statutes, add 24-72-609 as follows: 24-72-609. Sealing of criminal conviction records for marijuana convictions. (1) If a person was convicted of an offense under section 18-18-406, C.R.S., that would not have been an offense had section 16 of article XVIII of the Colorado constitution been in effect at the time of the offense, he or she may petition the district court of the district in which the conviction record pertaining to the defendant's conviction is located for the sealing of the conviction records, except for basic identifying information. (2) If a petition is filed pursuant to subsection (1) of this section for the sealing of a record of marijuana conviction, the court shall order the record sealed after: (a) The petition is filed; and (b) The filing fee is paid. SECTION 3. Act subject to petition - effective date. This act takes effect at 12:01 a.m. on the day following the expiration of the ninety-day period after final adjournment of the general assembly (August 6, 2014, if adjournment sine die is on May 7, 2014); except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within such period, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2014 and, in such case, will take effect on the date of the official declaration of the vote thereon by the governor; except that section 1 takes effect only if Senate Bill 14-206 does not become law, and section 2 of this act takes effect only if Senate Bill 14-206 becomes law and takes effect on the effective date of this act or of Senate Bill 14-206, whichever is later.