The first thing that happens when a person decides they want to try and seal their records is they, or their DC expungement attorney , would need to draft what’s called a motion to seal. That’s going to lay out the law of record sealing for the judge and explain why somebody is eligible to seal their record. Then, they will make arguments about why they deserve to have their record sealed.
In doing that, the first thing that needs to happen is we need a clear picture of person’s criminal record, so that person would need to have certified dispositions documents that show the outcome of each of their arrests or court proceedings. Then, facts need to be gathered from the client in order to craft arguments about why he or she deserves a sealed record. Common arguments include information about work history, education, volunteer work, family, and other ties to the community.
A record sealing case—from start to finish—usually takes somewhere between four and eight months. Particularly complicated cases where a client is asserting that they’re innocent of the crime they were charged, could take longer than six months.
By statute, the government is given two to three months to take a position on the motion, meaning that the government gives the court its opinion about an individual’s worthiness to seal. They can say we believe that person is innocent or we don’t believe that person was innocent. In formulating that opinion, they can interview the officers who arrested the client, review police reports witness statements, and interview witnesses. That is often a slow process because unlike in the criminal trial where there are hard deadlines set by judges, everything in record sealing is kind of more informal. The government can ask for additional time to respond and those requests are routinely granted.
It really depends. For defendants who were never charges with a crime, or who had charges dismissed early in their cases, actual innocence claims are common. For those whose cases proceeded further, interest of justice motions are more common. Each case is different and the appropriate choice of motion will be dictated by the facts of the case and characteristics of the defendant.
An interest of justice record sealing case is filed pursuant to DC Code Section 16-803. That’s the law that the DC Council passed which gives the courts the authority to seal somebody’s record. An interest of justice case involves a balancing of the public’s interest in knowing someone has a record, the movant’s interest in sealing his or her record, and the community’s interest in helping the movant’s rehabilitation.
The motion basically deals with three issues. The first is how the client’s record has adversely affected them. Have they been able to find a job? Have they lost their housing? Were they ineligible for promotion? All of the negative consequence of the person’s record can be useful to the motion.
Also, the court would look at any positive achievements that a person has had since the time they were arrested. Positive facts are critical to the success of any interest of justice motion. For someone who’s arrested or convicted, they really should start thinking immediately about moving past the arrest. They should try and find employment, stay out of trouble, and they should try and do some community service or be involved with things like civic organizations or churches. The more a person can demonstrate that he or she wants to move past the arrest, the more likely the court is to help that person do so.
The final thing that the courts look at in interest of justice case is the public’s right to know about a person’s public criminal record. For example, CVS is going to want to know that a candidate for a job in a pharmacy has been convicted of illegally selling prescription drugs or stolen from an employer in the past because they deal with controlled substances. Essentially, interest of justice cases are really just a balancing test.
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