While people charged with a crime tend to worry a lot about the case when it is still open, they try to put the whole experience behind them when the case is over. First-time offenders may therefore fail to take advantage of an important option for minimizing the impact of the case on their futures: the sealing of their criminal records.
Expungement is the formal legal process for removing, erasing, sealing or redacting records related to a criminal charge. Most expungement motions in D.C. are filed under the Criminal Records Sealing Act of 2006. In most cases, the person filing the motion is seeking to have his/her arrest record sealed (i.e., hidden from public view). It is also possible to have certain convictions sealed.
Sealing An Arrest Record
There are two ways to have an arrest record sealed in D.C. The first is to file a motion to seal the arrest record on the grounds of actual innocence. In order to assert actual innocence, 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 so no. D.C. Code § 16-802.
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” and 5 years for every other offense) before filing the motion. Only people with no open cases or prior convictions are eligible for relief.
For cases involving “eligible misdemeanors,” 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 shifts to 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
A person who has been convicted of an eligible misdemeanor or felony failure to appear violation must wait 10 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.
Click here for the list of “eligible misdemeanors.”
