People v. Wright

• Decision Date: 05 July 1979
• Citation: People v. Wright, 598 P.2d 157, 43 Colo.App. 30 (Colo. App. 1979)
• Docket Number: 79CA0056
• Parties: The PEOPLE of the State of Colorado, Plaintiff, v. Norman WRIGHT, Defendant-Appellee, v. Arthur G. DILL, Chief of Police, Denver Police Department, City and County of Denver, Respondent-Appellant. . I
• Court: Colorado Court of Appeals

Page 157

598 P.2d 157

43 Colo.App. 30

The PEOPLE of the State of Colorado, Plaintiff, v. Norman WRIGHT, Defendant-Appellee, v. Arthur G. DILL, Chief of Police, Denver Police Department, City and County of Denver, Respondent-Appellant.

No. 79CA0056.

Colorado Court of Appeals, Div. I.

July 5, 1979.

Galchinsky & Silverstein, Pamela McClune, Herbert H. Galchinsky, Denver, for defendant-appellee.

Max P. Zall, City Atty., Charles E. Sellner, Asst. City Atty., Denver, for respondent-appellant.

STERNBERG, Judge.

The question in this appeal is whether a defendant who has successfully completed a period of deferred prosecution culminating in the dismissal of the complaint may have his arrest record physically destroyed or returned to him; or whether the Criminal Justice Records Act, § 24-72-301 et seq., C.R.S.1973 (1978 Cum.Supp.), confines his rights to having the record sealed or release of the record limited. We determine he is entitled only to the statutory remedies and therefore reverse the decision of the trial court.

The defendant, Norman Wright, was arrested and charged with theft by receiving. Deferred prosecution was granted for one year, but the complaint was dismissed in less than four months. Wright petitioned the court to have his record "expunged," or returned to him. The court so ordered, and Arthur Dill, Chief of the Denver Police Department and custodian of Wright's records, appeals.

At the outset we emphasize that what is at issue here is "expungement" meaning the physical destruction of the arrest record, as contrasted to the sealing or limiting access to the record.

Relying on Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972), Wright asserts that he is entitled to physical destruction of his arrest record. Dill, on the other hand, argues that when, after Davidson, the General Assembly enacted the Criminal Justice Records Act, it meant it to be comprehensive and exclusive as to the remedies available to those persons covered by it. Because the statute makes provision only for the sealing and the limited release of records and does not allow physical destruction, Dill contends that destruction of records is no longer an available remedy. Wright responds that the statute is not exclusive so that physical destruction, sealing, and limited release are all viable remedies.

We determine that because the Criminal Justice Records Act provides a comprehensive scheme concerning criminal records, the statutory remedies are exclusive for those persons whose records come within the purview of the statute. Cf. Berman v. People, Colo.App., 589 P.2d 508 (1978) (expungement available remedy to unindicted co-conspirator).

Section 24-72-301(1), C.R.S.1973 (1978 Cum.Supp.), the legislative declaration, states:

"The General Assembly hereby finds and declares that the maintenance, access and dissemination, completeness, accuracy, and sealing of criminal justice records are matters of statewide concern and that, in defining and regulating those areas, only statewide standards in a state statute are workable."

The statute then sets forth standards and procedures for all of these aspects of criminal records. Pertinent here are the section limiting release of records, § 24-72-308(1)(b), C.R.S.1973 (1978 Cum.Supp.), and the section providing for sealing, § 24-72-308(1)(a), C.R.S.1973 (1978 Cum.Supp.), which states:

"Any person in interest may petition the district court of his residence or of the district in which the arrest and criminal records information pertaining to him is located for the sealing of all or any part of said record, except basic identification information."

When sealing is ordered, the following occurs:

"(T)he subject official actions shall be deemed never to have occurred, and the person in interest and all criminal justice agencies may properly reply, upon any inquiry in the matter, that no such action ever occurred and that no such record exists with respect to such person." Section 24-72-308(4), C.R.S.1973 (1978 Cum.Supp.).

"(5) Inspection of the records included in the order may thereafter be permitted by the court only upon petition by the person in interest who is the subject of such records or by the district attorney and only to those persons and for such purposes named in such petition." Section 24-72-308(5), C.R.S.1973 (1978 Cum.Supp.).

"(6) Employers, educational institutions, state and local government agencies, officials, and employees shall not, in any application or interview or otherwise, require an applicant to disclose any information contained in sealed records. An applicant need not, in answer to any question concerning arrest and criminal records information that has been sealed, include a reference to or information concerning such sealed information and may state that no such action has ever occurred. Such an application may not be denied solely because of the applicant's refusal to disclose arrest and criminal records information that has been sealed." Section 24-72-308(6), C.R.S.1973 (1978 Cum.Supp.).

Violators of this statute are guilty of a misdemeanor punishable by fine and imprisonment. Section 24-72-309, C.R.S.1973 (1978 Cum.Su...