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Sunday, March 22, 2015

Expungement and Letter of Good Conduct -- DC Rehabilitation Actions

A client came to our office on Friday, and asked the following question regarding expungement in DC:
I was accused of breaking and entering in Washington, DC in 2006. I pled out to a misdemeanor with no jail time. I long ago completed my probation -- is there something I can do to get this off my record? I heard that DC has a program to remove arrests, and was hoping you could help.

Good news! DC does have such a program. In fact, as far as rehabilitation goes, DC is by far one of, if not the most, liberal jurisdictions in the country. So what should you do to get a conviction off your record?

There are three methods for addressing criminal convictions on your record (this is really jurisdiction independent):
  • Expunge your conviction: Two components to this --
    1. remove public access to the charge, disposition, and court record, and possibly;
    2. remove the arrest and police records from public access.
  • Seek a Pardon: This removes all aspect of your case from the system (both arrest and court records), and erases the event itself.
  • Partial Pardon/Letter of Good Standing (or Rehabilitation): This is a middle-of-the-road approach offered in some jurisdictions that permit the governor or mayor to indicate a convicted individual has rehabilitated. This can be cited when applying to jobs, etc.

Getting an Expungement in DC

In DC, the first determination is whether the convicted offense falls within an "expungeable" group, or is barred from any form of relief. That can be found ins DC Code 16-801 (definitions). The following are excluded from expungement in DC:
(9) "Ineligible misdemeanor" means:
(A) Interpersonal violence as defined in § 16‑1001(6)(B), intimate partner violence as defined in § 16‑1001(7), and intrafamily violence as defined in § 16‑1001(9).

(B) Driving while intoxicated, driving under the influence, and operating while impaired (§ 50‑2201.05);

(C) A misdemeanor offense for which sex offender registration is required pursuant to Chapter 40 of Title 22, whether or not the registration period has expired;

(D) Criminal abuse of a vulnerable adult (§ 22‑936(a));

(E) Interfering with access to a medical facility (§ 22‑1314.02);

(F) Possession of a pistol by a convicted felon (§ 22‑4503(a)(2) [see now § 22‑4503(a)(1)]);

(G) Failure to report child abuse (§ 4‑1321.07);

(H) Refusal or neglect of guardian to provide for child under 14 years of age (§ 22‑1102);

(I) Disorderly conduct (peeping tom) (§ 22‑1321);

(J) Misdemeanor sexual abuse (§ 22‑3006);

(K) Violating the Sex Offender Registration Act (§ 22‑4015);

(L) Violating child labor laws (§§ 32‑201 through 32‑224);

(M) Election/Petition fraud (§ 1‑1001.08);

(N) Public assistance fraud (§§ 4‑218.01 through 4‑218.05);

(O) Trademark counterfeiting (§ 22‑902(b)(1));

(P) Attempted trademark counterfeiting (§§ 22‑1803, 22‑902);

(Q) Fraud in the second degree (§ 22‑3222(b)(2));

(R) Attempted fraud (§§ 22‑1803, 22‑3222);

(S) Credit card fraud (§ 22‑3223(d)(2));

(T) Attempted credit card fraud (§ 22‑1803, 22-223) [§§ 22‑1803, 22‑3223];

(U) Misdemeanor insurance fraud (§ 22‑3225.03a);

(V) Attempted insurance fraud (§§ 22‑1803, 22‑3225.02, 22‑3225.03);

(W) Telephone fraud (§§ 22‑3226.06, 22‑3226.10(3));

(X) Attempted telephone fraud (§§ 22‑1803, 22‑3226.06, 22‑3226.10);

(Y) Identity theft, second degree (§§ 22‑3227.02, 22‑3227.03(b));

(Z) Attempted identify theft (§§ 22‑1803, 22‑3227.02, 22‑3227.03);

(AA) Fraudulent statements or failure to make statements to employee (§ 47‑4104);

(BB) Fraudulent withholding information or failure to supply information to employer (§ 47‑4105);

(CC) Fraud and false statements (§ 47‑4106);

(DD) False statement/dealer certificate (§ 50‑1501.04(a)(3));

(EE) False information/registration (§ 50‑1501.04(a)(3));

(FF) No school bus driver's license (18 DCMR § 1305.1);

(GG) False statement on Department of Motor Vehicles document (18 DCMR § 1104.1);

(HH) No permit - 2nd or greater offense (§ 50‑1401.01(d));

(II) Altered title (18 DCMR § 1104.3);

(JJ) Altered registration (18 DCMR § 1104.4);

(KK) No commercial driver's license (§ 50‑405);

(LL) A violation of building and housing code regulations;

(MM) A violation of the Public Utility Commission regulations; and

(NN) Attempt or conspiracy to commit any of the foregoing offenses (§§ 22‑1803, 22‑1805a).

Generally, all felonies are excluded from expungement.

Once you determine that the conviction can be expunged (i.e. is not in the list above), the following code sections control:

§ 16–802. Sealing of criminal records on grounds of actual innocence.
§ 16–803. Sealing of public criminal records in other cases.
§ 16–803.01. Sealing of arrest records of fugitives from justice.
§ 16–804. Motion to seal.
§ 16–805. Review by Court.
§ 16–806. Availability of sealed records.
§ 16–807. Savings provision.

Distilled, the code stipulates that a defendant must wait 2 years to seal and information related to qualifying misdemeanors/charges (those not on the list above). The petitioner (called a "movant") must wait 5 years from date of conviction for misdemeanors on the list above (called disqualifying convictions), and 10 years from the date of a felony conviction, to petition for sealing the record. There are provisions for early expungement for not-guilty, noll-prosequi, and deferred sentencing agreements. The code relevant code states:
(from DC Code 16-803)

(2) (A) If a period of at least 5 years has elapsed since the completion of the movant's sentence for a disqualifying misdemeanor conviction in the District of Columbia or for a conviction in any jurisdiction for an offense that involved conduct that would constitute a disqualifying misdemeanor conviction if committed in the District, the conviction shall not disqualify the movant from filing a motion to seal an arrest and related court proceedings under this subsection for a case that was terminated without conviction before or after the disqualifying misdemeanor conviction, except when the case terminated without a conviction as a result of the successful completion of a deferred sentencing agreement.

(B) If a period of at least 10 years has elapsed since the completion of the movant's sentence for a disqualifying felony conviction in the District of Columbia or for a conviction in any jurisdiction for an offense that involved conduct that would constitute a disqualifying felony conviction if committed in the District, the conviction shall not disqualify the movant from filing a motion to seal an arrest and related court proceedings under this subsection for a case that was terminated without conviction before or after the disqualifying felony conviction, except when the case terminated without conviction as the result of the successful completion of a deferred sentencing agreement.

A letter of good conduct/rehabilitation is also available in DC, regardless of the length of time since serving the last conviction. These are complicated, however, and you should speak to us about the steps to obtain such a letter in DC. Additionally, DC has strict guidelines that protect employers that hire individuals with prior criminal records. This is designed to encourage employers to reintegrate released men and women into the workforce. See DC Council amendments favoring employment of released individuals.

Do you need help handling a criminal conviction? Both post conviction relief and expungement related activity ar best done through an attorney. Contact us at 703-402-2723 or 1-800-579-9864. If you're eligible, we can help!.



Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

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