Expungement/Sealing of Criminal Records
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? For example, was the charge a felony or misdemeanor? Were you charged as an adult or juvenile? 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. Also provided below are answers to such frequently asked questions as: What is the difference between “expunging” and “sealing” a criminal record? How can I obtain a copy of my criminal record/history? Can I seal a felony? How long does the sealing/expungement take? What must I disclose after a record has been expunged or sealed?
To speak with a criminal defense lawyer/attorney with experience in handling the sealing/expungement of criminal arrests and convictions in D.C,, please contact Jamison Koehler of Koehler Law at 202-549-2374 or firstname.lastname@example.org.
Sealing/expunging an arrest record on the 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. 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.
Any type of offense – felony or misdemeanor – is eligible for relief under this type of motion. And this type of motion can be filed immediately after termination of the prosecution.
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 for a misdemeanor
For people who are not able to assert actual innocence, the second way to have an arrest record sealed is to wait a period of time (2 years for “eligible misdemeanors,” 3 years for ineligible misdemeanors that were never papered, and 4 years for every other offense) before filing the motion. Any open cases or any convictions after the arrest for which relief is sought render a person ineligible for such relief.
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.
Click here for an explanation of what you must disclose after successfully having your record sealed/expunged under this statute.
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 an arrest or conviction for Fake ID/Misrepresentation of Age
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.
Sealing/expunging an arrest or conviction for an offense that has been decriminalized or legalized
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.
Sealing/Expunging a Drug Conviction in D.C.
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: § 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.
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 the sealing of a public record.
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.
Can I 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 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 sealing/expungement take?
Although Koehler Law commits to filing a motion to seal/expunge within a week of being retained, the process after filing normally takes four to six months.
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.
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.