Motions to Seal and Expungement of Criminal Records in the District of Columbia
The District of Columbia recently passed the Second Chance Amendment Act of 2022 to fix the District’s complex, confusing, and draconian laws dealing with the sealing and expungement of criminal records. The effective date of the new law [D.C. Law 24-284] has been delayed to January 1, 2026, but it will have a drastic impact on sealing and expungement of criminal records in the District.
What is a motion to seal versus an expungement?
While both sealing and expungement involve limiting public access to criminal records, they have a different effect. Sealing a criminal record means that the record is not completely erased, but it is hidden from public view and access. When a criminal record is sealed, it is typically inaccessible to the general public, including potential employers, landlords, and the general public. However, certain government agencies and law enforcement may still be able to access sealed records in specific situations.
Expungement goes a step further than sealing a criminal record. When a record is expunged, the record itself is erased or destroyed, and the effect is usually as if the criminal offense never occurred. Expungements typically result in complete removal of the criminal record from public databases and it is usually more restrictive than sealing. There may be differences in the effect of an expungement, depending upon whether the record expunged was a conviction versus a non-conviction or arrest.
The District’s current law does not expunge criminal records – they are “sealed.” The new law permits expungement of some records and expands what records are eligible for sealing.
What cases are eligible to be sealed or expunged?
Current Law
Under the current law, there are two grounds for sealing a criminal record:
Actual innocence; and
In the interests of Justice
Actual innocence:
A person may file a motion to seal criminal records under the current law on the basis of actual innocence if he or she can show that the offense that they were arrested for did not occur, or that they are not the person who committed the offense. This form of record sealing provides more protection than the interests of justice – if granted, the person moving for record sealing (the “movant”) is restored to the status they held prior to their arrest. It is best to file this type of request within 4 years of the arrest, because after 4 years, the burden on the movant changes from preponderance of the evidence to clear and convincing evidence.
In the Interests of Justice:
If a person is not eligible to seal their criminal record under the actual innocence standard, they may be eligible to seal their record in the interests of justice. There is a minimum of a two-year waiting period before a person may file a motion to seal criminal records in the interests of justice. A lawyer may be able to assist with an earlier filing of such a motion if the government agrees. Individuals who wish to seal their record, but have records that contain disqualifying misdemeanor arrests, disqualifying misdemeanor convictions, or felony convictions, must wait longer to file a motion to seal. A record sealed in the interests of justice must be disclosed in certain circumstances, such as jury service or an application for employment/licensure with certain entities and government organizations.
New Law
Automatic expungement of criminal records:
The new law requires the automatic expungement of criminal records for citations, arrests, charges, or convictions, for criminal offenses that are subsequently decriminalized, legalized, or held unconstitutional in most circumstances. The expungement must occur within 90 days after termination of the case, or by January 1, 2026, whichever is later.
Expungement of criminal records by motion:
With respect to motions to expunge records based on actual innocence, the new law is similar in many ways to the current law but differs in several important aspects. First, there is no longer a different burden if the motion is filed after 4 years: the movant must show by a preponderance of the evidence that the offense did not occur or was not committed by the movant, regardless of when the motion for expungement is filed. Second, it requires an order dismissing, granting or denying the motion to be issued no later than 180 days after the motion is filed, unless there is good cause for delay. If a motion is denied, then the person may move for relief again after a one-year waiting period. The effect of an expungement is to restore the movant to the position they held prior to their arrest.
Automatic sealing of criminal records:
The new law requires automatic sealing of criminal records for certain citations, arrests, or charges where the prosecution was terminated or that did not result in a conviction. These records must be sealed within 90 days of the termination of the case. Automatic sealing will also be ordered for citations, arrests, charges, and convictions for misdemeanors if at least 10 years has elapsed since completion of the sentence. There are limitations on the types of crimes that are eligible for automatic sealing – certain crimes are not eligible for automatic sealing.
Sealing criminal records by motion:
As with the current law, a motion may be filed to seal criminal records prior to the 10-year waiting period for automatic sealing in many circumstances and in circumstances where automatic sealing is not an option. The waiting period is still 5 years from the completion of the movant’s sentence for most misdemeanors, but the waiting period has been reduced from 10 years to 8 years for certain felonies. There is no automatic expungement of felonies under the either the new law or current law.
Do I need a lawyer to seal or expunge my criminal record?
While having a lawyer is not required, having an experienced lawyer can increase the likelihood that relief is granted, because the lawyer can ensure that the appropriate evidence is presented and the proper legal standard are followed. Contact us at 240-396-4373 to schedule a consultation.
