Expunge your criminal record in D.C.: actual innocence

by Jamison Koehler on January 10, 2020
Expunge records on grounds of innocence

The fastest and most effective way to remove an arrest from your criminal record is to file a motion alleging actual innocence under D.C. Code §16-802.   

There are a number of advantages to this type of motion. First, because there is no waiting period, you can file the petition immediately.  You do not need to wait two, three, or four years as is required under D.C. Code § 16-803.  

Second, you can file a motion with respect to any type of charge.  Open also to felonies, coverage of the statute is not limited to only certain types of misdemeanors.  

Finally, and perhaps most importantly, the granting of a motion under this statute restores you to the legal position you occupied before your arrest.  It is not simply that the record is hidden from public view.  It is as if the arrest never happened. 

Along with the advantages come two principal disadvantages.  For one thing, it applies only to arrests.  After all, it is difficult to allege actual innocence after having been found guilty by a court. 

The second disadvantage is that the burden of proof is more difficult.  Unlike motions under D.C. Code § 16-803 in which the burden is typically on the government to prove the motion should not be granted, the burden under this type of motion is on the petitioner.  Specifically, if filed within 4 years after the prosecution was terminated, the person requesting the relief must prove beyond a preponderance of the evidence (that is, more likely than not) either that the offense for which the person was charged did not occur or that the offense did occur but that the person charged was not the person who committed it.  The burden is proof by “clear and convincing evidence” if the motion is filed more than 4 years after termination of the prosecution.

And, of course, the court will require proof before it grants the motion.  One way to present such proof is through affidavits/declarations.  

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