DC Expungement Lawyer
The District of Columbia Records Sealing Act 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. Its 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. There are three bases to file a motion to seal an arrest or conviction. First, for most misdemeanor offenses, you can get your criminal record sealed up when its 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).
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 its 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 public justice standard. For an arrest, the burden is on the government to prove that its 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 the DC marijuana legalization passed, 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 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.
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: (1) Any court (including jury service); (2) Any federal, state, or local prosecutor; (3) Any law enforcement agency; (4) Any licensing agency with respect to an offense that may disqualify a person from obtaining that license; (5) Any licensed school, day care center, before or after school facility or other educational or child protection agency or facility; (6) 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.
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. Its important to speak with a qualified DC expungement attorney to understand when disclosure is still necessary.