Expungement/sealing of criminal records in D.C.

Generally speaking, expunging a criminal record puts you back in the legal position you occupied before the arrest. It is as if the arrest never happened. Sealing a record hides it from public view.

There are many different ways to expunge or seal a criminal record in Washington, D.C. Whether or not you are eligible depends on two factors. First, what was the nature of the charge? Second, what happened with the case? For example, was the charge no-papered or dismissed? Did the case result in a conviction? If so, on what charges?

Provided below is a comprehensive description of all the ways a criminal record can be expunged or sealed in the District:

Expunging/sealing an arrest record on grounds of actual innocence
Sealing an arrest record in the interests of justice
Sealing a conviction for an “eligible misdemeanor”
Expunging a criminal record for Fake ID
Expunging a juvenile record
Expunging a criminal record for de-criminalized offense
Setting aside a conviction under the Youth Rehabilitation Act
Expunging/sealing a drug conviction
Unsealing a Criminal Record

Also provided below are answers to frequently asked questions:

What is the difference between “expunging” and “sealing” a criminal record?
What happens when a criminal record is expunged/sealed?
What must I disclose about a criminal record that has been expunged/sealed?
Can I expunge/seal a felony?
How long does the expungement/sealing take?
How do I find out if my criminal record is in FBI database?
Will the record remain in the FBI database after expungement/sealing?
What is a “disqualifying arrest or conviction”?
What is an “eligible misdemeanor?”

To speak with a criminal defense lawyer/attorney with experience handling the sealing/expungement of criminal arrests and convictions in Washington, D.C,, please contact D.C. expungement lawyer Jamison Koehler of Koehler Law at 202-549-2374 or jkoehler@nullkoehlerlaw.net.

Expunging/sealing an arrest record on grounds of actual innocence

The quickest way to have an arrest record sealed in Washington, D.C. is to file a motion to seal on the grounds of actual innocence. D.C. Code § 16-802. There is no waiting period for this type of motion; it can be filed immediately. Moreover, any type of offense – felony or misdemeanor – is eligible for relief under this section.

In order to prevail under this type of motion, the person filing the motion must convince the judge either that the offense for which the person was arrested did not occur or that the offense did occur but that it was someone else who committed it. In the case of simple assault or theft, for example, the person submitting the motion might include an affidavit of the alleged victim confirming that the crime never occurred.

The standard of review for a judge considering the motion is a preponderance of the evidence (i.e., more likely than not) if filed within 4 years of the date the prosecution was terminated. If the motion is filed beyond 4 years of this date, the evidence must be clear and convincing; that is, evidence that is highly probable or reasonably certain.

The effect of a judge granting this motion is to “restore” the person who filed the motion to the “status he or she occupied before being arrested or charged.” In other words, if ever asked by anyone for any purpose whether or not he/she has ever been arrested or charged with a crime, the person can honestly and legally say no. D.C. Code § 16-802.

Sealing an arrest record in the interests of justice

For people who are not able to assert actual innocence, the way to have an arrest record sealed is to wait a period of time (two years for “eligible misdemeanors,” three years for ineligible misdemeanors that were never papered, and four years for every other offense) before filing the motion. (Although the government can waive the waiting period, it is rare that the government will agree to do so).

Any open criminal cases in D.C. or elsewhere temporarily render the petitioner ineligible for relief. In addition, a person who has been convicted of a criminal offense after the offense for which relief is sought must wait five years after the sentence for a misdemeanor offense has been served and ten years in the case of a felony conviction. Further information on “disqualifying arrests and convictions” is provided below..

For cases involving “eligible misdemeanors” (see below), the burden is on the prosecution to establish by a preponderance of the evidence that it is not in the interests of justice to grant relief. For every other offense, the burden is on the person filing the motion to prove by a preponderance of the evidence that it is in the interests of justice to grant the motion.

If the motion to seal is granted under these circumstances, the person subject to the relief is able to honestly and legally deny the arrest or charge to anyone other than: (1) any court, (2) any federal, state, or local prosecutor, (3) any law enforcement agency, (4) any licensing agency, (5) any licensed school, day care center, or other facility involving children, (6) any government employer or nominating/tenure commission with respect to employment of a judicial or quasi-judicial officer or employment at a senior-level, executive-grade government position. D.C. Code § 16-803.

Sealing a conviction for an “eligible misdemeanor”

A person who has been convicted of an eligible misdemeanor (see below) or felony violation under the Bail Reform Act must wait eight years after completion of sentence before filing a motion to seal the conviction. Any open charges or prior convictions would render the person ineligible for relief. The burden is on the person filing the motion to establish by clear and convincing evidence that it is in the interest of justice for the judge to grant relief.

If the motion is granted, the person subject to relief is able to honestly and legally deny the conviction to anyone other than: (1) any court, (2) any federal, state, or local prosecutor, (3) any law enforcement agency, (4) any licensing agency, (5) any licensed school, day care center, or other facility involving children, (6) any government employer or nominating/tenure commission with respect to employment of a judicial or quasi-judicial officer or employment at a senior-level, executive-grade government position. D.C. Code § 16-803.

Expunging a criminal record for Fake ID

D.C. statute provides a special provision for people arrested for Fake ID/Misrepresentation of Age. People arrested for this offense may file a motion to seal/expunge all records associated with the arrest six months following the date of either a conviction or dismissal of the charges or, if the charge was no-papered, six months after the arrest. The effect of an expungement under D.C. Code § 25-1002 is to restore the person to the position he/she occupied before the arrest.

Expunging a juvenile record

A person who has been the subject of juvenile proceedings in D.C. can also file a motion to have all records associated with the case sealed. The person needs to wait until two years after the person has been released from court supervision. In addition, the person cannot have been subsequently convicted of a crime or adjudicated delinquent/in need of supervision. Upon entry of the order, the proceedings will be treated as if they never occurred. D.C. Code § 16-2335.

Expunging a criminal record for a decriminalized offense

A person who has been arrested for, charged with, or convicted of a criminal offense that was later decriminalized or legalized may file a motion to seal the record at any time. For example, now that possession of a small amount of marijuana is now legal in D.C., people who were arrested or convicted for unlawful possession of marijuana might be eligible for expunging their criminal record under this provision. The effect of expunging the record is to restore the person to the position he/she occupied before the arrest. D.C. Code § 16-803.02.

“Setting aside” a conviction under the Youth Rehabilitation Act

The Youth Rehabilitation Act in D.C. allows the court to “set aside” a conviction for a person who was under the age of 25 at the time the offense occurred after the person has successfully served his/her sentence. It does not matter how old the person is today or whether or not the Youth Act was was even in effect at the time of the offense. In other words, the Act’s provisions are retroactive. The “set aside” has the same effect as “sealing” the record. (See below.). The “set aside” only applies to the conviction. To seal records of the arrest, the person must still file a motion under D.C. Code § 16-803.

Expunging/Sealing a Drug Conviction

There are two ways to seal/expunge records of a drug offense in D.C.

The first way is to seal a misdemeanor drug arrest or conviction under the Criminal Records Sealing Act. This is described in greater detail above under the discussion of D.C. Code § 16-803.

The second – and better way, if available – would be to expunge the record under a provision of the Controlled Substances Act: D.C. Code § 48-904.01(e). Applying only to people who have never been convicted of a drug offense before, either in D.C. or elsewhere, treatment under this provision requires the court to determine that the defendant is eligible at the time of the guilty plea or verdict. Instead of entering the guilty judgment into the record and sentencing the defendant, the court puts the defendant on a period of probation for up to a year.

If the court finds during this period that the defendant has violated the terms of this probation, the court will enter the guilty judgment and convict the defendant. If, however, the court finds that the defendant has completed the probation successfully, it can discharge the defendant from probation and dismiss the case. The defendant can then file a motion to expunge his or her record. One benefit of treatment under this provision is that it applies to both felony and misdemeanor drug cases.

Unsealing a Criminal Record

Although this happens far less frequently, it is occasionally necessary to unseal a criminal record that was previously expunged/sealed. Immigration officials and legal, medical and financial licensing boards, for example, will often ask for documentation on a criminal case when reviewing an application, even when the record has been expunged/sealed. This is why it is essential for you to obtain certified copies of all such records before the case is expunged/sealed. Fortunately, D.C. Code § 16-806 provides a mechanism for D.C. Superior Court to unseal records for a limited purpose and then to re-seal the records once this purpose has been achieved.

More recently, the criminal clerk’s office has simplified the process for obtaining records that have been sealed. For further information, email the clerk’s office at criminalmotionsealteam@nulldcsc.gov.

FREQUENTLY ASKED QUESTIONS

What is the difference between “expunging” and “sealing” a criminal record?

Expungement (also called “expunction) is defined as the removal of a conviction from a person’s criminal record. The word itself suggests that the record is completely destroyed, erased, obliterated, wiped out. By contrast, the “sealing” of criminal records is defined as “the act or practice of officially preventing access to particular records in the absence of a court order.” In other words, the records still exist. They are just not accessible to the public.

D.C. statutes dealing with criminal records tend to use the word “sealing.” Sometimes this is the most accurate word to describe what is actually being done. For example, a criminal record under D.C. Code § 16-803 — the most commonly used statute to seal or expunge a criminal record – is not actually destroyed. It is simply hidden from public view, and there are certain instances in which it must still be disclosed.

At other times, D.C. law uses the word “sealing” when what actually results would more closely resemble an expungement. For example, although D.C. Code § 16-802 is entitled “Sealing of criminal records on grounds of actual innocence,” it restores people to the position they occupied before their arrest. In other words, in the eyes of the law, it is as if the whole criminal case never happened. This sounds more like expungement than sealing.

What happens when a criminal record is expunged/sealed?

Depending on the record in question and the statute that was invoked in support of the petition, the court will generally issue an order directing all relevant prosecuting offices, law enforcement agencies, and pretrial, corrections or community supervision agencies to remove all publicly available records that identify the person as having been arrested, charged and/or convicted in the case.

This could involve multiple parties. For example, there are two different prosecuting offices in the District: the Office of the U.S. Attorney and the Office of the Attorney General. Law enforcement agencies in the District include the Federal Bureau of Investigation (FBI), the Metropolitan Police Department, Metro Transit Police, the U.S. Capitol Police, the U.S. Park Police, and, in unusual cases, the U.S. Secret Service. As for supervising entities, there is the Pretrial Services Agency, the Court Services and Offender Supervision Agency, and the D.C. Department of Corrections.

Because D.C. courts do not have jurisdiction over federal entities such as the FBI, compliance with the court’s order in these cases would be a matter of courtesy, not necessity.

The typical order will also direct each affected entity to certify back to the court, usually within 90 days, that, to the best of its knowledge, all references that identify the person as having been arrested, prosecuted and/or convicted in the case have been removed from its publicly available records. The entities are sometimes allowed to retain non-public copies of the records. In response to public inquiries, all entities are required to respond that no such records exist. The records will also be removed from D.C. Superior Court’s public docket system, usually within a couple of days of the order being issued.

What must I reveal about a criminal record that has been expunged/sealed?

Clearing a criminal record under most D.C. sealing/expungement statutes restores you to the position you occupied before your arrest. Legally speaking, therefore, you are entitled to deny the arrest even happened. This, for example, is the situation with respect to D.C. Code § 16-802 (actual innocence), D.C. Code § 803.02 (decriminalized offenses), D.C. Code § 16-2335 (juvenile offenses), and D.C. Code § 25-1002 (fake ID/misrepresentation of age).

The answer with respect to D.C. Code § 16-803 (interests of justice) is slightly more complicated. A person who has had a criminal record removed under this section can deny the arrest ever happened with two exceptions. First, you would need to acknowledge the record if asked about it in connection with serving on a jury. Second, you still need to disclose the record “in response to any direct question contained in any questionnaire or application” for a position with one of the following entities or organizations:

any court, prosecutor, or law enforcement agency;
any licensing agency “with respect to an offense that might disqualify a person from obtaining that license”;
any licensed school, day care center, before or after school facility or other educational or child protection agency or facility;
any government employer or nominating commission with respect to a judicial or quasi-judicial officer or a senior-level/executive-grade position with the government.

Whether you avail yourself of your right to deny the criminal record that has been sealed or expunged is a different question you might want to discuss with your lawyer. A critical question is whether or not the arrest record is showing up in the FBI database (see below).

Can I expunge/seal a felony?

The first option for sealing a felony arrest would to be file a motion on the grounds of actual innocence under D.C. Code § 16-802. Motions under this section can be filed immediately, and have the benefit of restoring the person to the position he/she occupied before the arrest.

The second option for sealing a felony arrest would be to wait three or four years (depending on whether the case was formally charged) and to file it under D.C. Code § 16-803. There are instances in which an arrest that is sealed under this section must still be disclosed. For example, a person whose arrest is sealed under § 16-803 must still disclose the arrest in connection with jury service or in response to any direct question for employment with any court, prosecutor’s office, law enforcement agency, licensing agency, school, daycare or child protection agency, or senior-executive position or judicial position with the government.

At the same time, it is easier to seal a criminal record under this section. Instead of being required to prove by a preponderance of the evidence that the person did not commit a criminal offense, as is required under § 16-802, the person must merely prove – also by a preponderance of the evidence – that it is “in the interests of justice to grant relief.” This is an easier standard to prove.

Felony convictions are typically not eligible for sealing or expungement in D.C. One exception is a felony conviction for violating the Bail Reform Act. Another possible exception would be a felony conviction under the Controlled Substances Act in which the court sentenced the defendant under D.C. Code § 48-904.01(e). This is a special provision that allows first-time offenders to avoid having a conviction on their record. The person is put on a period of pre-judgment probation. Assuming he/she completes this probationary sentence successful, he/she can petition to have all official records associated with the case expunged.

How long does the expungement/sealing take?

Although Koehler Law commits to filing a motion to seal/expunge within a matter of days of being retained, the process after filing normally takes four to six months. The process has been taking a little longer recently because of the large number of judicial vacancies in the District.

Motions to seal are now filed electronically through Case File Express. The Criminal Clerk’s Office will assign the motion to a D.C. Superior Court judge. That judge will typically sit on the motion for a couple of weeks. In motions filed under D.C. Code § 16-802 and § 16-803, the judge will then order the government – the Office of the Attorney General in traffic and juvenile cases and the Office of the U.S. Attorney in most other cases — to respond within 60 days. In most cases, the government will offer its “concession” in which it notifies the court that it has no objection to the granting of the motion. It will then take the court another couple of weeks to issue the order.

There is typically an accelerated schedule for motions filed under D.C. Code § 25-1002 (fake ID/misrepresentation of age). This is because these motions are more straightforward. The statute does not require the court to exercise its discretion in deciding whether or not to grant the motion. If the petitioner meets all the criteria, the court “shall” issue the order.

How do I find out if a criminal record is reflected in the FBI database?

Many entities will consult the National Crime Information Center (NCIC), the FBI’s “electronic clearinghouse of crime data, when conducting a background investigation. For example, a police officer investigating your driving record during a traffic stop and an immigration official checking your passport upon re-entry to the country will both have access to this database. This is why people are particularly interested in ensuring that criminal records are removed from this database.

In order to find out if your criminal record is included in the FBI database, you can request an Identity History Summary Check (IdHSC). You can also request FBI records under the Freedom of Information Act (FOIA).

Will the expunged/sealed criminal record remain in the FBI database?

Upon receiving an order to expunge or seal a criminal record in D.C., the D.C. Superior Court Clerk’s Office will send notice to a number of entities/organizations, including the FBI, ordering them to remove all records/publicly available records from their files. Although D.C. Superior Court judges do not have “jurisdiction” over a federal entity such as the FBI, the FBI will in most cases comply with this request as a courtesy.

Customer service for the FBI records office can be reached at 304-625-5590. You can also visit their website here.

What is a “disqualifying arrest or conviction”?

One obstacle to sealing a criminal record under D.C. Code § 16-803 is the existence of a “disqualifying arrest or conviction.”

A “disqualifying arrest” is defined as a “pending criminal case in any jurisdiction.” In other words, if you have an open case in D.C. or anywhere else, you will need to wait until this case is dismissed before you can file a petition to seal.

A “disqualifying conviction” is a conviction in any jurisdiction that happened after the arrest or conviction the petitioner is seeking to seal. The petitioner is required to wait five years after the sentence for a disqualifying misdemeanor conviction has been served before becoming eligible to file the motion. The waiting period for a disqualifying felony conviction is 10 years.

What is an “eligible misdemeanor?”

“Eligible misdemeanor” is any misdemeanor that is NOT included in the following list:

Intrafamily offense as defined under D.C. Code § 16-1001(8)
Driving while intoxicated, driving under the influence, or operating while impaired under D.C. Code § 50-2201.05
Any misdemeanor offense for which sex offender registration is required under Chapter 40 of Title 22
Criminal abuse of a vulnerable adult under D.C. Code § 22-936(a)
Interfering with access to a medical facility under D.C. Code § 22-1314.02
Possession of a pistol by a convicted felon under D.C. Code § 22-4503(a)(1)
Failure to report child abuse under D.C. Code § 4-1321.07
Refusal or neglect of guardian to provide for child under 14 years of age under D.C. Code § 22-1102
Disorderly conduct (“peeping tom”) under D.C. Code § 22-1321
Misdemeanor sexual abuse under D.C. Code § 22-3006
Violating the Sexual Offender Registration Act under D.C. Code § 22-4015
Violating child labor laws under D.C. Code §§ 32-201 through 22-224
Election/petition fraud under D.C. Code § 1-1001.08
Public assistance fraud under D.C. Code §§ 4-218.01 through 4.218.05
Trademark counterfeiting under D.C. Code § 22-902(b)(1)
Attempted trademark counterfeiting under D.C. Code §§ 22-1803, 22-902
Fraud in the second degree under D.C. Code § 22-3222(b)(2)
Attempted fraud under D.C. Code §§ 22-1803, 22-3222
Credit card fraud under D.C. Code § 22-3223(d)(2)
Attempted credit card fraud under D.C. Code §§ 22-1803, 22-223 [§§ 22-1803, 22-3223)
Misdemeanor insurance fraud under D.C. Code § 22-3225.03(a)
Attempted insurance fraud under D.C. Code §§ 22-1803, 22-3225.02, 22-3225.03
Telephone fraud under D.C. Code §§ 22-3226.06, 22-3226.10(3)
Attempted telephone fraud under D.C. Code §§ 22-1803, 22-3226.06, 22-3226.10
Identity theft, second degree, under D.C. Code §§ 22-3227.02, 22-3227.03(b)
Attempted identity theft under D.C. Code §§ 22-1803, 22-3227.02, 22-3227.03
Fraudulent statements or failure to make statements to employee under D.C. Code § 47-4101
Fraudulent withholding information or failure to supply information to employer under D.C. Code § 47-4105
Fraud or false statements under D.C. Code § 47-4106
False statement/dealer certificate under D.C. Code § 50-1501.04(a)(3)
No school bus driver’s license under 18 DCMR §1305.1
False statement on Department of Motor Vehicles document under 18 DCMR § 1104.1
No permit, second or greater offense under D.C. Code 50.1401.01(d)
Altered title under 18 DCMR § 1104.3
Altered registration under 18 DCMR § 1104.4
No commercial driver’s license under D.C. Code § 50-405
Violation of building or housing code regulations
Violation of the Public Utility Commission regulations
Attempt or conspiracy to commit any of the offenses above.