Washington DC criminal law provides a process for individuals with arrests and convictions on their records to get have their record expunged. An arrest is not a conviction. It is much worse to have a conviction on your record than to only have an arrest. However, schools, employers, and basically anyone who does a background check will not look favorably on either. Accordingly, if you have a prior arrest or conviction, its important to consult a DC expungement lawyer to see if you are eligible to have your record expunged.
What offenses are eligible for sealing in DC?
In DC, any misdemeanor arrest may be sealed as long as the defendant is not convicted. The waiting period, however, changes depending on the type of offenses. Certain eligible misdemeanor arrests and convictions may be expunged after 2 years from the date of dismissal or being no papered. Other misdemeanors, like DUI or domestic violence charges, may only be sealed after four years from the date of dismissal.
Eligible misdemeanor convictions may be sealed eight years after the individual completes his or her sentence. Certain “ineligible” misdemeanor convictions, again like DUI or domestic violence offenses, however, may not be expunged ever. Having an eligible misdemeanor sealed requires that the person wait two years and file a motion with the court. Whether the person filing the motion was guilty or innocent does not matter for purposes of the motion. The only felony conviction eligible for expungement is a felony Bail Reform Act violation (failing to appear for court).
These rules all apply when filing a motion to seal based on the interest of public justice. This motion requires the defendant to show its in the interest of public justice to have their record sealed. Its then the government’s burden to prove by a preponderance of the evidence that its not in the interest of public justice to seal the record if they oppose the sealing. The government usually does not oppose these types of motions where the defendant is eligible to have his or her record sealed.
What about actual innocence?
Someone arrested and charged with a crime but not convicted can file a motion under grounds of actual innocence. That motion can be filed at any time after the case is dismissed. However, to file on grounds of actual innocence, the moving person must prove by a preponderance of the evidence that person did not commit the offense. If the person waits longer than four years to file the motion, the burden of proof rises to clear and convincing evidence.
In cases like this, the defendant must obtain and produce actual evidence showing either she did not commit the crime or someone else committed it. A common way to show actual innocence is by getting the complaining witness to sign an affidavit or declaration stating the crime did not happen. The statement must be true because the complainant must sign under oath and could subject themselves to perjury were they to lie.
What about sealing marijuana arrests or convictions?
In 2015 when the District of Columbia City Council legalized possession of certain amounts of marijuana, it also amended the record sealing statute. Any legalized or decriminalized offense whether arrest or conviction is eligible for sealing in DC. That means you can file a motion to seal any marijuana arrest or conviction that occurred prior to legalization going into effect.
Do I have to disclose a sealed arrest or conviction?
If your record is sealed under the interest of public justice, then you still must disclose your arrest and conviction in certain circumstances. The D.C. Code sets out six scenarios you must still disclose your arrest or conviction. You must disclose a sealed under the interest of public justice standard to any court, prosecutor, law enforcement agency, licensing agency if the offense would disqualify you from obtaining the license, and any licensed school, daycare, educational, or child protection agency. Lastly, you must disclose in connection with employment as a judicial or quasi-judicial officer or employment at senior level executive grade government employment.
For an arrest sealed under the “actual innocence” standard, you need to disclose under any circumstances. The purpose of record sealing under the actual innocence standard is to restore the individual to the position they were prior to arrest. In addition, a sealing for a legalized or decriminalized offense, like possession of marijuana, need not be disclosed for “any purpose.”
Having said that, some questions like on security clearance application may ask whether you have had any arrests or convictions even those expunged. To determine whether you need to answer that question in the affirmative its important to speak to an experienced DC expungement lawyer.
If you have an arrest or conviction on your record, contact Scrofano Law PC today for a consultation on whether you can have your record expunged. We have experience getting records sealed based on the interest of public justice, based on actual innocence, and subsequently decriminalized or legalized conduct.