In the District, depending on the outcome of a criminal case, there are various formulas used to seal arrest and other generated criminal records.  This blog will address four main statutorily authorized procedures and the requirements thereto:

1)   Sealing the record when case dismissed before trial

2)   Sealing record based on innocence

3)   Sealing record post trial with a non-guilty verdict

4)   Post conviction filing to seal record

1) Sealing of the Arrest Records

Motion to seal an arrest record may be file by any person arrested for an offense whose prosecution/case has been terminated without conviction and before trial.

Motion to seal the arrest record may be filed within 120 days of the case dismissal.  Beyond that, and up to three years post dismissal, a motion to seal may be filed — however the motion needs to detail and substantiate good cause shown why it was not filed within 120 days required.  It must articulate clearly that motion needs to be considered in order to prevent manifest injustice.  Any filing beyond the three years would require consent of the prosecutor.

The prosecutor has 30 days to file a written response.  The court may or may not require a hearing, however, if hearing held, hearsay evidence is admissible and if the court finds by clear and convincing evidence that the crime did not occur – then motion to seal the arrest record will be granted.

2) Sealing of criminal records on grounds of actual innocence

A person arrested and charged with a criminal offense whose prosecution has been terminated without conviction may file a motion at any time to seal the criminal record of the arrest and the related court proceedings based on the actual innocence.

The burden is on the movant to establish that: (1) The offense arrested for and charged with did not occur; or (2) that the movant did not commit the offense.

If the motion is filed within 4 years after termination of the prosecution, the movant’s burden is by a preponderance of the evidence.  If the motion is filed more than 4 years after the termination of the prosecution, the burden is by clear and convincing evidence.

There is rebuttable presumption that the movant is not entitled to relief if the court finds that the government has been substantially prejudiced in filing a response by the movent’s delay in filing the emotion to seal.

There is no presumption that the acquittal establishes innocence and automatic relief.

 3) Sealing of public criminal records in other cases

A person arrested/or charged with an eligible misdemeanor whose prosecution has been terminated without conviction may file a motion to seal the publicly available records of the arrest and related court proceedings if:

A period of at least 2 years has elapsed since the termination of the case; and that the defendant does not have a disqualifying arrest or conviction.

For any other offense charged with and the prosecution terminated without conviction, a motion to seal the publicly available records of the arrest and related court proceeding may be filed if:

A period of at least 5 years has elapsed since the termination of the case; and that the movant does not have a disqualifying arrest or conviction.

4) Filing post Conviction

A person convicted of an eligible misdemeanor/an eligible felony may file a motion to seal the publicly available records of the arrest, related court proceedings, and conviction if:

At least 10 years has elapsed since the completion of the movant’s sentence; and that the defendant/movant does not have a disqualifying arrest or conviction.

The standard of Review:

The Court shall grant a motion to seal if it is in the interests of justice to do so while considering the following factors:

The interests of the movant in sealing the records of his or her arrest, related court proceedings, or conviction v. the community’s interest in being able to access such records, including the interest of prospective employers and promoting public safety.

The public’s interest in furthering the movant’s rehabilitation/employability.

The Court may also consider:

The nature and circumstances of the offense; the movant’s role; the weight of the evidence in the non-conviction motions, the movant’s character; the movant’s physical and mental condition; employment history; overall conduct; drug and alcohol use and any treatment thereof; criminal history; and rehabilitation; the number of arrests and conviction subject to the motion; time elapsed since arrest or conviction; any statements by the victims, other motions to seal granted or denied.

It is imperative to engage the services of an experienced DC Criminal Lawyer expert in sealing the arrest records, and other public criminal files pre and post conviction when applicable.