QUESTION: Is it true that certain misdemeanor convictions will now prevent me from legally buying, or even possessing, a handgun or sporting rifle? Can my arrest record be cleared if I was arrested but not convicted of such a charge?

BY
James M. Edwards, P.C.
1401 17th Street, Suite 330
Denver, CO 80202
(303) 293-8191
FAX (303) 292-0924
http://JamesEdwardsLawFirm.Com

ANSWER: Yes to the first question and most likely yes to the second.

   During his term in office President Clinton signed a crime bill that included new restrictions on gun ownership. It used to be that a felony conviction would prevent one from legally possessing or purchasing a gun. That was expanded to misdemeanor convictions for domestic violence, no matter when the conviction occurred or whether or not actual physical violence was involved. You may have seen articles about this in local papers or on the news because it has caused some police departments to have to take guns away from certain officers who had prior convictions for domestic violence. Some of these convictions were several years old.
   The law had a retroactive effect, it applied to crimes committed years ago. Thus, even though that behavior did not then cause a loss of gun ownership privileges, it has been made so by this crime law.
   Generally speaking, laws are not allowed to have retroactive effect.
   The legislature is not allowed to pass a new law that criminalizes or punishes past behavior that was not a crime before the law was passed. For example, if today the legislature passed a law that said owning two cars is now a crime, it could not enforce the law against anyone that owned two cars before the law was passed. The law could only apply to people who owned one car and then, after the new law was passed, tried to own a second car.

   Until this issue is resolved in the court there is little one can do about prior convictions on the record.
   However, if the conviction was eventually dismissed after a successful period of probation then the file can be sealed through the filing of a Petition to Seal Records.
   One can seal an arrest record, the court file and police files if you were

  • acquitted of the charge
  • if the charge was dropped
  • or if the charge was dismissed as a result of a deferred judgment or prosecution plea bargain.

   Certain records cannot be sealed, those involving sexual assaults and traffic offenses are two examples. If you were convicted the record cannot be sealed.
   In most cases having the record sealed is a routine matter and no court appearance is necessary unless an objection is filed by the police or the district attorney.
   Sealing a record has certain advantages, on employment applications you are then allowed by Colorado law to state that you have never been arrested or charged with the crime if the record has been sealed. The reason for this is that you should not have to reveal potentially harmful, embarrassing or humiliating information that may have happened several years ago where the result was that you were acquitted or the charges were later dropped as part of a plea agreement.
   You should talk to your lawyer about these issues if you have prior arrests on your record but the charges were dropped or you were acquitted.

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JAMES M. EDWARDS, P.C. is a general practice law office with an emphasis on personal injury matters and motor vehicle claims. The office also handles traffic matters, criminal matters, insurance questions, and consumer issues. The office of JAMES M. EDWARDS, P.C. is located at 1401 17th Street, Suite 330, Denver, CO 80202, (303) 293-8191, Fax 292-0924.

Copyright 2008, James M. Edwards, P.C. All Rights Reserved. No portion of this article may be reprinted or republished without permission of the author. The article is meant to advise the reader of general legal principles and trends. It is not case specific legal advice. If you would like further information, or would like to see a specific topic addressed in a future article, please contact the author.

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