Can I get my DC arrest record sealed?
The default rule for record sealing eligibility is that anyone is eligible so long as you were not convicted of an ineligible misdemeanor or an ineligible felony. However, depending on the charge and other factors, you may have to wait for a long period of time to be eligible. Also, there is only one felony charge that is eligible for sealing if convicted and that is a felony bail reform act violation. No other felony convictions can be sealed.
Under DC law, there are 40 ineligible misdemeanors ranging from domestic violence and sex abuse to DUI and fraud. There is one exception to this default rule: a claim of “actual innocence.” You can file this type of claim regardless of the crime you were arrested for so long as you were not convicted. However, just because you were not convicted does not mean that the court will find that you are innocent of the crime. You have the burden of proving that you are actually innocent of the crime you were arrested for and you cannot have gotten convicted if you want to claim innocence.
How long do I have to wait to seal my record?
How long you have to wait to file a motion to seal depends on the type of crime you are seeking to have sealed and whether you were convicted, or your case was dismissed. The more serious offenses carry a longer wait time. Convictions, rather than dismissals, also carry a longer wait time. Misdemeanor convictions can be sealed eight years after the completion of the sentence. That means if you were on probation, you have to wait eight years from the date you complete probation.
If you try to prove actual innocence and were not convicted of the offense, you can file that motion at any time after the case was dismissed. There is no waiting period for actual innocence motions. In addition, if you were arrested and/or convicted for possession of marijuana, you can file a Motion to Seal based on a Subsequently Legalized or Decriminalized Offense and there is no waiting period for that motion.
If you file a motion to seal for an eligible or ineligible misdemeanor or felony where you were not convicted but cannot prove actual innocence the judge will evaluate the motion on whether its in “the interest of public justice” to seal your record. Under this analysis, the following rules apply regarding time you must wait to file:
If you were arrested or charged but not convicted for an eligible misdemeanor, you must wait at least 2 years since the case ended.
If you were arrested or charged but not convicted for an ineligible misdemeanor, you must wait at least 4 years since the case ended.
If you were arrested for an ineligible misdemeanor but the prosecutors no papered the case, then you only have to wait 3 years from the date of when the case was no papered.
For claims of actual innocence, you can file a motion to seal at any time. Again, however, the burden of proof is on the defendant to prove actual innocence. That means you need affidavits from witnesses or other type of proof to show you did not actually commit the crime you were arrested for or that the crime was never committed.
What type of information do I put in my motion to seal?
What to put on a motion to seal depends on whether you are filing it based on “actual innocence” or because its “in the interest of public justice” that your record be sealed. A motion to seal should include information about why you’re eligible to seal your records and any facts in support of your motion including a statement of points and authorities, evidence exhibits, affidavits, and supporting documents.
For motions filed after the appropriate waiting period (under the “interest of public justice standard”), the court considers numerous factors when deciding whether to seal your records including: (1) why you want to seal your records; (2) the community’s interests in keeping your records public; (3) the nature of the offense; (4) your role in the offense; and (5) your personal history and characteristics. Furthermore, you must include information about all of your past arrests and convictions, and you must ask the court to also seal those records as well.
For claims of actual innocence, you must provide the court with proof that you are actually innocent. As previously mentioned, that means affidavits or other competent evidence that you did not actually commit the crime you were arrested for. For a subsequently legalized or decriminalized offense, you have to show the conduct you engaged in has subsequently been legalized or decriminalized.
What happens after I file for expungement?
Once you file your motion to seal, the court will conduct an initial review. At this stage, the court may dismiss or deny your motion, without government response, if it plainly appears that you are not eligible or entitled relief. If the court does not dismiss or deny your motion, it will then request that the government file a response within 60.
After the government files a response, the court will either issue a decision or conduct a hearing. If the court holds a hearing, you and the government can present witnesses and other evidence to support your arguments. After the hearing, the court will decide whether to grant or deny your motion.
If the motion is granted, do I still have to disclose the arrest?
If you file under the “interest of public justice” standard, you still must disclose the arrest under very limited circumstances. Unfortunately, sealed does not mean no longer in existence. The good news though is that having your records sealed will narrow the list of people who can access your records.
If your records were sealed on the basis of actual innocence, they are only available by court order. Plus, the person or entity attempting to obtain your records must demonstrate a compelling need for them. Under this standard, the law tries to put you in the position you were in before getting arrested.
Should I hire an expungement lawyer?
When deciding whether you should file a motion to get your criminal records sealed, it is important that you hire a skilled DC Expungement attorney who will provide you with answers to any and all of your questions and concerns. At Scrofano Law PC, we have successfully filed motions to seal on behalf of our clients and had their records expunged.
If you or someone you know has been arrested, charged, or convicted for any DC offense, call Scrofano Law PC immediately for a full consultation.