Fort Collins Criminal Defense Attorney

Criminal Defense and Record Sealing

Most of us, including most of my clients, do not encourage or want criminal conduct in our community. However, I do strongly believe in and support the rights of persons accused of crime. Those rights are critical for our freedom. And sometimes we as a society over-react in our efforts to solve societal problems, by passing more and more criminal laws. Whether by trial, raising evidentiary legal questions, or seeking the least onerous sentence available, I strive to protect my clients' interests.

If you are under investigation or have been arrested for a crime, you can contact me by phone at (970) 224-9281. If you are arrested on a weekend or there is other urgent need to speak with an attorney, I can be reached at that phone number evenings and weekends. I strongly encourage you to talk with an attorney before meeting voluntarily with the police or making any admissions. It may be too late afterwards to ask what your rights are, or what the best course of action is.

As an attorney, I can visit a client in jail without having to wait for public visiting hours, and can help that client get through the uncertainty and fear they may be experiencing. In Larimer County, bond is set on new arrests in court hearings held at 1:30 p.m. Monday through Friday, except for holidays. (Some bonds on less serious cases are set at night and over the weekend by pre-trial services "bond commissioners"). So a Friday night arrest can result in an uncomfortably long weekend in jail. The Larimer County Detention Center is pretty good as jails go, but it is still jail.

I have handled most types of criminal charges, representing clients in courts throughout northern Colorado and Denver. I am also experienced in dealing with legal matters relating to firearms. I have dealt with a variety of federal and state authorities including the FBI, DEA, ATF, local police, Dept. of Human Services, U. S. Attorneys, and County District Attorneys. I have seven years experience myself as an assistant District Attorney.

Unlike many attorneys, I also include in my representation the important step of seeing that state criminal/arrest records are correctly updated upon completion of the court case. The intial arrest record only shows the criminal charge filed at the time of the arrest. These are not the same as the court records, and sometimes are not automatically or correctly updated from the court record. And arrest records were generally not automatically updated at all for arrests before 2003 or so. These records are now available online to the public for a small fee. Proper updating can ensure that future checks by potential employers or police will show the actual outcome of the case when charges have been dropped or significantly reduced, the defendant is found not-guilty, or charges are dismissed after completion of a deferred sentence.

Sealing Records ("Expunging" records)

I also can assist you in petitioning to have your Colorado court and arrest records sealed, when possible under the law. This is the Colorado equivalent of what is sometimes referred to as expungment of records. Under current Colorado law, criminal records (for adult defendants) can generally (but see next paragraph) only be sealed: (1) if the charges never get filed in court; (2) if an entire criminal court case (all charges or "counts") is dismissed, either by the DA without a trial or after a finding of not guilty to all counts by a judge or jury; or (3) if the defendant received and successfully completed a deferred sentence on one or more counts, and all other counts in that case had been dismissed when that deferred sentence was imposed.

Special sealing rules for drug convictions

It is also now possible to petition to seal certain old drug-related convictions, even if they were not deferred sentence "convictions". The scope of this provision was expanded in 2011 to include even drug distribution or sale convictions. BUT SEALING OF FELONY DRUG CONVICTIONS THAT HAD NOT BEEN DISMISSSED DOES NOT "VACATE" OR SET ASIDE THE CONVICTION, SO LIKELY DOES NOT RESTORE CIVIL RIGHTS, LIKE THE RIGHT TO POSSESS FIREARMS.

There are special restrictions that apply to sealing multiple criminal cases that were all resolved by a plea agreement at one time, and there are some types of cases that cannot be sealed. Municipal (city) court criminal cases, MIP (minor in possession/use of alcohol) cases, under-21 low-alcohol DUI cases, and juvenile court cases also present different issues for sealing.

Sealing is not automatic just because a case qualifies to be sealed. The sealing decision is discretionary with the Judge hearing the petition to seal. The DA frequently objects to petitions to seal. It is important to present the best case possible in the petition to seal, and that is where an attorney's help can make the difference.

And keep in mind the importance of correcting arrest records (see above), even when a case cannot be sealed.

It can be helpful, in situations where record sealing is not possible, to have a letter of explanation and clarification of the results of a criminal charge by an attorney. This can facilitate conversations with employers, government offices, or other interested parties, especially those who are not familiar with Colorado laws.

Sex Offender Registration

I assist clients in petitioning to end the requirement to register as a sex offender, when that is allowed by law for certain less serious offenses. Please note that the registration requirement does not end automatically just because the five- or ten-year minimum period has elapsed.

ALSO, even if the Court in which you were found guilty allows you to stop registering, as the law now stands in Colorado and most other states you must keep registering if you live in another state, or start registering again if you move to a different state. To be permitted to stop registering, you also have to follow the laws of the state in which you now live.

Effect of Criminal Convictions on Voting Rights, Resident Alien/Immigration Status, and other Civil Rights

I help clients understand the effect of various types of criminal convictions on their voting rights, other civil rights, employment opportunities, and the like.

In Colorado, convicted felons can vote unless they are still serving time in prison or are on parole. BUT each state has its own laws on felons and voting rights. Some states never let a convicted felon vote again, and some require the passage of a certain amount of time after a sentence is completed before voting rights are restored.

If you are in the United States as a resident alien, foreign student, or you are otherwise not a citizen, it is critical that you speak with an attorney if you are charged with any crime, even a misdemeanor offense. U.S. immigration laws are very complex (I often consult expert immigration attorneys myself), and a criminal conviction can carry immigration consequences that you may not realize are there.

Criminal Convivtions and Firearms Rights

Both federal and state laws govern the effect a criminal conviction has on your ability to legally possess or purchase a firearm. Laws vary greatly from state to state, and even within various cities, as to purchase, possession, and carrying of firearms even by citizens with no criminal record. I urge you to find out what the gun laws are where you live, so that you do not inadvertently break the law and lose the rights that you otherwise have.

The federal gun laws apply everywhere in the United States, but do not generally override the laws of the state you are in if that state's laws are more strict. The major factor for gun restrictions is convictions for felonies and for misdemeanors involving domestic violence. However, it is not that simple. Some of the legal determinations to be made are:

1. What is a "firearm" under the restriction, i.e. does the definition include a replica 1840's muzzle-loading rifle?
2. What is a "conviction" in that state? Is the conviction permanent?
3. Is the offense a felony? For example, does "felony" include juvenile offenses?
4. What is "domestic violence" for gun law purposes? Are you dealing with only the federal law definition, or a state gun restriction also?

In Colorado, we currently have a felony-conviction weapon prohibition that is much broader and stricter than the federal law. But we have no state law gun prohibition for misdemeanor domestic violence convictions; instead we rely on the federal law in that area. The federal gun law definition of "domestic violence" does not include all of the offenses that are considered domestic violence crimes under Colorado law.

There have been recent Court decisions striking down some local firearm ownership restrictions applicable to all residents, as a violation of the 2nd Amendmend in the Bill of Rights contained in the U.S. Constitution. But no U.S. Supreme Court case has yet addressed such questions as whether non-violent felonies, or any misdemeanor, can constitutionally result in the permanent loss of the right to possess a firearm. SO DO NOT ASSUME THAT YOUR 2ND AMENDMENT RIGHTS WILL PROTECT YOU FROM PROSECUTION FOR POSSESSING A WEAPON WHEN YOU HAVE SUCH PRIOR CONVICTIONS!

Kirk Brush
Attorney and Counselor at Law
First National Tower Bldg.
215 West Oak Street, Suite 500
Fort Collins, Colorado 80521
Telephone: (970) 224-9281
Fax: (970) 224-5700