A Complete Guide to Expungement in DC
If you are looking for help with record sealing or expungement in Washington DC, our experienced expungement lawyers can help. Get the facts
What is Expungement in DC?
The legal term “expungement” refers to the process by which a criminal conviction is either sealed or destroyed in the government’s records so that it cannot be viewed. In theory, an expungement gives people the chance to start over without a Washington DC criminal conviction hanging over their heads.
The District of Columbia Records Sealing Act, passed in 2006, governs how individuals can request that the Court expunge or seal their criminal records.
Unfortunately, the law itself has many rules that don’t make it easy for folks to get their arrest records cleared. The first thing to consider is whether you are trying to seal a record of an arrest or a record of a conviction. It’s easier to seal an arrest record than a conviction. The rules for sealing an arrest also require a shorter waiting period than those for sealing a conviction.
To seal an arrest that does not result in a conviction, there are multiple grounds to file a motion to seal. To qualify in most cases, your criminal case must have been no papered, dismissed, nolle prosequi, or acquitted at trial. A plea of guilty or a guilty finding at trial means you may not be eligible to have your conviction sealed up except under certain circumstances.
What are the Bases on which You Can Request DC Expungement?
There are three bases on which to file a motion to seal an arrest or conviction.
First, for most misdemeanor offenses, you can get your criminal record sealed up when it’s in the interest of public justice. All dismissed charges are eligible for sealing where the arrested person can prove “actual innocence.” Finally, both arrests and convictions can be sealed up where the conduct has been subsequently decriminalized or legalized (like possession of marijuana).
Below, we explain each of these bases. Don’t hesitate to reach out to an experienced Washington DC expungement lawyer from the Scrofano Law PC team for help if you think you may qualify for record sealing.
The Interest of Public Justice
To have an arrest sealed based on the interest of public justice, you must wait two years from the date the case was dismissed or the date you were acquitted. Once the two-year waiting period is up, you can file a motion to seal based on the interest of public justice. This requires the Court to consider factors listed in the D.C. Code, which include, but are not limited to: the nature of the offense alleged; the character and history of the individual seeking to have the arrest sealed; and any statements made by the victim (if any). These motions are typically granted and often not opposed by the government.
You may also move to seal certain misdemeanor convictions when it’s in the interest of public justice. However, only eligible misdemeanor convictions can be sealed. In addition, the waiting period is 8 years from the time of the completion of the sentence. That means, for example, if you were convicted of simple assault in 2008 and put on probation until December of 2009, your conviction is not eligible for sealing until December 2017 (8 years from the completion of probation).
And for convictions, the burden is on the movant to prove that it is in the interest of public justice to seal the record. This requirement is unlike sealing an eligible misdemeanor arrest under the interest of the public justice standard. For an arrest, the burden is on the government to prove that it’s not in the interest of public justice to seal an arrest record.
However, certain crimes are declared “ineligible misdemeanors,” which include, among others, domestic violence offenses and DC DUI offenses. For these offenses, you must wait three or four years to move to seal based on the interest of public justice. In addition, ineligible misdemeanors are only eligible for sealing if the charges were dismissed. If you get convicted for an ineligible misdemeanor, like DUI, you can never get that conviction sealed up.
A second basis to seal an arrest record is by asserting “actual innocence.” In that scenario, the burden is on the person filing the motion to prove either by a preponderance of the evidence or by clear and convincing evidence that the individual was actually innocent of the crime alleged.
This creates a difficult burden as it is often hard to prove a negative. In addition, the government sometimes fights these motions tooth and nail. However, filing under “actual innocence” requires no waiting period, and there are no “ineligible offenses.”
Decriminalized or Legalized Conduct
After marijuana legalization passed in Washington DC, the City Council amended the record sealing statute to provide for sealing arrests and convictions where the subsequent conduct has been legalized or decriminalized. The most common scenario where this applies is for arrests and convictions for possession of marijuana. Filing a motion to seal in this context requires no waiting period and the burden is on the government to prove the conduct was not subsequently legalized or decriminalized.
How to Expunge a Criminal Record in DC
Working with a Washington DC expungement lawyer typically gives you the best chance of successfully sealing your criminal record in the District of Columbia.
To have your record sealed, you need to submit a request to the Criminal Information Office at the Moultrie Courthouse, part of the DC Superior Court. But first, you must make sure that any applicable waiting period has passed and that you are not trying to expunge an ineligible misdemeanor or another crime for which record sealing is not possible under D.C. code.
According to the code, ineligible crimes include:
- Interpersonal violence (D.C. Code § 16-1001(6)(B) only); intimate partner violence; and intrafamily violence. (Generally, any crime, including threats, assault, destruction of property, burglary, etc., where the defendant and complainant (alleged victim) had a particular relationship with each other. See below for explanations of the specific relationship definitions.)
- Driving while intoxicated or under the influence and/or operating while impaired.
- A misdemeanor offense that required you to register as a sex offender.
- Criminal abuse of a vulnerable adult
- Interfering with access to a medical facility
- Possession of a pistol by a convicted felon
- Failure to report child abuse
- Refusal or neglect of guardian to provide for child under 14 years of age
- Disorderly conduct (peeping tom)
- Misdemeanor sexual abuse
- Violating the Sex Offender Registration Act
- Violating child labor laws
- Election/petition fraud
- Public assistance fraud
- Trademark counterfeiting
- Attempted trademark counterfeiting
- Fraud in the second degree
- Attempted fraud
- Credit card fraud
- Attempted credit card fraud
- Misdemeanor insurance fraud
- Attempted insurance fraud
- Telephone fraud
- Attempted telephone fraud
- Identity theft, second degree
- Attempted identity theft
- Fraudulent statements or failure to make statements to employee
- Fraudulent withholding information or failure to supply information to employer
- Fraud and false statements
- False statement/dealer certificate
- False information/registration
- No school bus driver’s license
- False statement on DMV document
- No permit – 2nd or greater offense
- Altered title
- Altered registration
- No commercial driver’s license
- A violation of building and housing code regulations
- A violation of the Public Utility Commission regulations
- Attempt or conspiracy to commit any of the above offenses.
In order for your expungement lawyer to assess if you meet the criteria, the next step is to gather your paperwork.
DC Expungement Forms
The Metropolitan Police Department (MPD) has a specific document called the “Arrest History Report for Purposes of the Criminal Record SealingAct of 2006.”
You will need to request one of these reports from the MPD in order to check your eligibility for record sealing. This document shows ALL of your arrests, convictions, and non-convictions, as opposed to the more commonly known “Police Clearance” form that shows events from the past 10 years that resulted in conviction or forfeiture.
There is typically a small fee in order to get a copy of your MPD forms, and you will need proper identification (government-issued ID and social security number) as well.
Once you have your Arrest History Report, your attorney will review it to confirm that your criminal record is eligible to be sealed. At that point, they will assemble a Motion to Seal and submit the original documents and copies to the court.
Record Expungement in DC and Disclosure after Sealing
If your record is sealed based on actual innocence, you can answer no to the question of being arrested under any circumstance. That is because the purpose of sealing under the actual innocence standard is to restore the individual to the position they existed in prior to the arrest. The same is true for sealing when the conduct has been subsequently legalized or decriminalized.
However, if you file a motion to seal under the interest of public justice, there are several scenarios in which you must still disclose your arrest or conviction. It’s important to speak with a qualified DC expungement attorney to understand when disclosure is still necessary.
If your record is sealed under the interest of public justice standard, you can honestly deny being arrested on an application without perjuring yourself, except when asked under the following circumstances:
- Any court (including jury service);
- Any federal, state, or local prosecutor;
- Any law enforcement agency;
- Any licensing agency with respect to an offense that may disqualify a person from obtaining that license;
- Any licensed school, daycare center, before or after school facility or other educational or child protection agency or facility;
- Any government employer or nominating or tenure commission with respect to: (i) Employment of a judicial or quasi-judicial officer; or (ii) Employment at a senior-level, executive-grade government position.
If you have questions about sealing an arrest record, contact Scrofano Law PC for a full case evaluation. We have experience moving to expunge records under the interest of public justice, under the actual innocence standard, and for subsequently legalized or decriminalized offenses.
For more information on getting your record sealed, please see our frequently asked questions.
Work with an Attorney for Expungement Services in DC
At Scrofano Law PC, our team has years of experience going up against the criminal justice system in Washington DC. We care about our clients, and we understand that in the current system, one simple mistake can follow you for years and make it extremely challenging to find a good job, further your education, or even rent an apartment.
We’re here to help relieve that burden. Our team has experience getting records sealed based on the interest of public justice, based on actual innocence, and based on subsequently decriminalized or legalized conduct such as possession of marijuana. We know what it takes to get your record expunged, and we are ready to put that knowledge to work for you.
Expungement can be complex – for instance, even conviction for an eligible misdemeanor becomes unable to be sealed if you have also been convicted of an ineligible misdemeanor or felony. To get a full understanding of your options, contact the Scrofano Law PC team today.
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