Expunge D.C. criminal record on grounds of actual innocence

Last updated by lawyer: September 20, 202

A person who was arrested or charged with a crime in Washington, D.C. may be able to have the criminal record expunged on the grounds of actual innocence.

Under D.C. Code § 16-803, the D.C. Superior Court must order the expungement of eligible criminal records if the person proves that the offense did not occur or that the person did not commit it.

Unlike many other forms of criminal record relief in the District, there is no waiting period for an actual-innocence motion. The motion may be filed at any time.

What is expungement based on actual innocence in D.C.?

D.C. Code § 16-803 allows a person to seek expungement of criminal records relating to a citation, arrest, or criminal charge when the case was terminated without a conviction and the person can establish actual innocence.

To obtain relief, the person must demonstrate that:

the offense did not occur; or
the offense occurred, but the person seeking expungement did not commit it.

The person seeking expungement has the burden of proving actual innocence by a preponderance of the evidence. In other words, the person must establish that it is more likely than not that the offense did not occur or that the person did not commit it.

D.C. Code § 16-803(a).

Is there a waiting period for an actual-innocence expungement in D.C.?

No.

A motion for expungement based on actual innocence may be filed at any time. D.C. Code § 16-803(b).

This distinguishes actual-innocence expungement from other forms of criminal record relief that may depend on waiting periods or other eligibility requirements.

Does a dismissal mean that I am entitled to expungement?

No.

The fact that the government dismissed the charges does not by itself establish actual innocence. Nor does an acquittal automatically establish that the person is innocent for purposes of § 16-803.

Instead, the person filing the motion must affirmatively establish that the offense did not occur or that the person did not commit it.

For example, in a [simple assault] case, the person seeking expungement might submit an affidavit from the complaining witness stating that the alleged assault never occurred. In a [theft] case, documentary evidence, witness statements, video evidence, or other information might establish that the person charged was not the person who committed the offense.

The evidence necessary to establish actual innocence will depend on the facts of the particular case.

What must be included in a motion for expungement?

A motion under D.C. Code § 16-803 must state the grounds on which the person is eligible for expungement and the facts supporting the claim of actual innocence.

The motion may also include a memorandum of points and authorities, affidavits, exhibits, and other supporting documents.

The prosecutor receives a copy of the motion and may oppose it. Depending on the circumstances, the court may decide the motion based on the written submissions or hold a hearing at which the parties can present witnesses and other evidence.

What happens if the court grants the motion?

If the court grants an actual-innocence motion, it must rule as a matter of law that the person did not commit the offense or that no offense was committed.

Eligible criminal records and court proceedings are then expunged in accordance with D.C. law.

The legal effect of expungement is significant. D.C. Code § 16-804 provides that expungement restores the person, in contemplation of law, to the status the person occupied before the citation, arrest, charge, or conviction.

Is expungement different from sealing a criminal record?

Yes.

D.C. law distinguishes between sealing and expungement. Expungement based on actual innocence provides particularly broad relief because it is based on a judicial determination that the person did not commit the offense or that the offense did not occur.

Not every dismissed criminal case will qualify for actual-innocence expungement. Other forms of record sealing may be available when a person cannot satisfy the actual-innocence standard.

D.C. lawyer for actual-innocence expungement

Koehler Law represents clients seeking to clear criminal records in Washington, D.C., including motions for expungement based on actual innocence under D.C. Code § 16-803.

The firm has successfully represented clients seeking relief under this provision of the D.C. criminal record sealing and expungement law.

To discuss whether a D.C. arrest or criminal case may qualify for expungement or another form of record sealing, contact Jamison Koehler at 202-549-2374.