D.C.’s new criminal record sealing and expungement statute

D.C.’s current criminal records statute is a disaster.

For one thing, entitled “The Criminal Record Sealing Statute,” it fails to distinguish between record sealing and record expungement even when, in some instances, the effect of the court order has the legal effect of expungement.

“Sealing” means hidden from public view.  “Expungement” implies that the record is destroyed. 

For another, the complexity of the statute makes it difficult to interpret and administer.  This complexity has led to recent problems with the FBI failing to actually remove the record from its database.

As described in greater detail below, D.C.’s new statute, which is currently scheduled to take effect on January 1, 2026, seeks to simplify the process and to remedy many of the existing problems, thereby making it easier for people to move on from a criminal past.

AUTOMATIC EXPUNGEMENT OF RECORDS FOR DECRIMINALIZED OFFENSES

The statute reserves its most favorable treatment – full removal without the need to file a motion – for cases in which the underlying offense was subsequently decriminalized, legalized, or held to be unconstitutional. 

This would apply, for example, to a marijuana conviction since the possession of a small amount of marijuana was decriminalized in 2014. 

And it would cover citations, arrests, charges and convictions.

EXPUNGEMENT OF CRIMINAL RECORDS BY MOTION

Also eligible for expungement are records associated with cases in which the person asserts “actual innocence.”  Under this category of cases, the person must file a motion asking the court to find either that the offense did not happen or that it did happen but the offense was not committed by the person seeking the relief. 

AUTOMATIC SEALING OF CRIMINAL RECORDS

There are two categories of cases in which the sealing of a record is automatic; in other words, the party does not need to file a motion.

Felony and misdemeanor cases which are terminated without conviction

In the first category are all cases in which, for whatever reason, the charges were ultimately dismissed and the party was never convicted of a crime.  This would include felonies as well as misdemeanors. 

Cases that were dismissed before December 20, 2022 shall be automatically sealed by January 1, 2027 or within 90 days of termination, whichever is later.

Cases that were/are dismissed after December 20, 2022 will be automatically sealed within 90 days of the dismissal. 

Cases that resulted in conviction for an eligible misdemeanor offense

The second category of cases that will be automatically sealed include all cases in which the person was convicted of an eligible misdemeanor offense.

The timeframe for automatic sealing is 10 years after the party completed the sentence.  For example, if the person was convicted on January 1, 2024 and sentenced to a year of probation and the person completed that probation successfully, the record will be automatically sealed after January 1, 2034. 

Every misdemeanor charge is eligible for automatic sealing except for the following charge/type of offense:

• Domestic violence/intra-family offense
• Parental kidnapping
• Abuse of a vulnerable adult/elderly person
• Financial exploitation of vulnerable adult/elderly person
• Refusal or neglect by guardian
• Incest
• Misdemeanor sexual abuse
• Non-consensual pornography
• Sexual performance using minors
• Stalking
• Sex offender
• Dangerous offense
• Crime of violence
• Driving under the influence
• Operating while impaired

SEALING OF CRIMINAL RECORDS BY MOTION

The sealing of all other cases, including convictions for ineligible misdemeanors and most felonies, can be accomplished through the filing of a motion. 

There is a 5 year waiting period after the sentence has been completed for misdemeanor convictions and an 8 year waiting period for eligible felony convictions.    

The burden is on the movant to establish by a preponderance of the evidence that it is in the interests of justice to seal the record. 

EFFECT OF EXPUNGEMENT AND SEALING

The effect of expungement is to restore the person, in the eyes of the law, to the position the person occupied before the arrest. 

The effect of sealing a criminal record is to remove all records related to the citation, arrest, charge, prosecution, and/or conviction from public view.