§ 16–2335.02. Sealing of records on ground of actual innocence.

(a) Notwithstanding section 16-2335, a person who has been arrested for violation of the District of Columbia Official Code or the District of Columbia Municipal Regulations, or has been the subject of a petition filed pursuant to section 16-2305 and whose prosecution has been terminated without adjudication may file a motion with the Family Court at any time to seal all of the records of the arrest and related court proceedings on grounds of actual innocence.

(b) The burden is on the movant to establish that:

(1) The violation for which the person was arrested or petitioned did not occur; or

(2) The movant did not commit the offense.

(c) If the motion is filed within 4 years after the prosecution has been terminated, the movant must satisfy the burden described in subsection (b) of this section by a preponderance of the evidence.

(d) If the motion is filed more than 4 years after the prosecution has been terminated, the movant must satisfy the burden described in subsection (b) of this section by clear and convincing evidence.

(e) In determining such motions, the Family Court may, but is not required to, employ a rebuttable presumption that the movant is not entitled to relief if the court finds that the government has been substantially prejudiced in its ability to respond to the motion by the delay in its filing, unless the movant shows that the motion is based on grounds which the person could not have raised by the exercise of reasonable diligence before the circumstances prejudicial to the government occurred.

(f) An acquittal does not establish a presumption that the movant is innocent or entitled to relief pursuant to this section.

(g) A person whose adjudication has been vacated pursuant to section 16-2335.01(g)(2), and whose subsequent prosecution is terminated without adjudication, may file a motion with the Family Court pursuant to subsection (a) of this section or any other provision of law.

(h) A person who is found to be actually innocent pursuant to this section or section 16-2335.01(g)(3) shall be entitled to the following relief with respect to such count or counts:

(1)(A) The Family Court shall summarize in the order the factual circumstances of the challenged arrest and any post-arrest occurrences it deems relevant, and, if the facts support such a conclusion, shall rule as a matter of law that the movant did not commit the offense for which the movant was arrested or that no offense had been committed.

(B) A copy of the order shall be provided to the movant or his or her counsel.

(C) The movant may obtain a copy of the order at any time from the Family Court, upon proper identification, without a showing of need.

(2)(A) In a case involving co-respondents or co-defendants in which the Family Court orders the movant’s records sealed, the Family Court may order that only those records, or portions thereof, relating solely to the movant be sealed.

(B) The Family Court shall order that the movant’s name be redacted to the extent practicable from records that are not sealed. The Family Court may make an in camera inspection of these records in order to make this determination.

(C) The Family Court need not order the redaction of references to the movant that appear in a transcript of court proceedings involving the co-defendants.

(D) After references to the movant have been redacted as provided for in this paragraph, the Court shall order those records relating to co-defendants returned to the prosecutor or the Clerk of the Superior Court (“Clerk”).

(3) The Court shall not order the redaction of the movant’s name from any published opinion of the trial or appellate courts that refer to the movant.

(4) The Court shall:

(A) Order the prosecutor, any relevant law enforcement agency, the Department of Youth Rehabilitative Services, and any other public or private agencies or institutions that provided supervision or treatment, or had custody of the person, if the supervision, treatment, or custody was under an order issued by the Family Court to seal any records that identify the movant as having been arrested, prosecuted, or adjudicated;

(B) Order the prosecutor to arrange for any computerized record of the movant’s arrest, prosecution, or adjudication to be eliminated except for a restricted-access file that would permit the prosecutor and law enforcement agencies to retrieve sealed records if ordered to do so by the Court; and

(C) Expressly allow the prosecutor and law enforcement agencies to maintain a publicly available record so long as it is not retrievable by the identification of the movant.

(5) The Family Court shall order the prosecutor, any relevant law enforcement agency, the Department of Youth Rehabilitative Services, and any other public or private agencies or institutions that provided supervision or treatment, or had custody of the person, if the supervision, treatment, or custody was under an order issued by the Family Court to file a certification with the Court within 90 days of an order to seal the records that, to the best of its knowledge and belief, all references that identify the movant as having been arrested, prosecuted, or adjudicated have been sealed.

(6) The Family Court shall:

(A) Order the Clerk to collect all Family Court records pertaining to the movant’s arrest, record, or adjudication and cause to be purged any computerized record;

(B) Expressly allow the Clerk to maintain a record so long as the record is not retrievable by the identification of the movant; and

(C) Order the Clerk to file under seal all Family Court records retrieved pursuant to this section, together with the certifications filed pursuant to this subsection by the prosecutor, any relevant law enforcement agency, the Department of Youth Rehabilitative Services, and any other public or private agencies or institutions that provided supervision or treatment, or had custody of the person, if the supervision, treatment, or custody was under an order issued by the Family Court, within 7 days after receipt of such records.

(7) The Clerk shall place the records ordered sealed by the Family Court in a special file, appropriately and securely indexed in order to protect its confidentiality. Unless otherwise ordered by the Family Court, the Clerk shall reply in response to inquiries concerning the existence of records which have been sealed pursuant to this chapter that no records are available.

(8) Once notified, any District agency in possession of a person’s record shall seal, expunge, and otherwise maintain the record so that the record is in compliance with any order issued by the Family Court pursuant to this section.

(i) The effect of relief pursuant to this section shall be to restore the movant, in the contemplation of the law, to the status he or she occupied before being arrested or charged. No person as to whom such relief has been granted shall be held thereafter under any provision of law to be guilty of perjury or otherwise giving a false statement by reason of failure to recite or acknowledge his or her arrest, or charge, or trial in response to any inquiry made of him or her for any purpose.

(j) A motion to seal filed with the Family Court pursuant to this chapter shall state grounds upon which eligibility for sealing is based and facts in support of the person’s claim. It shall be accompanied by a statement of points and authorities in support of the motion, and any appropriate exhibits, affidavits, and supporting documents. A copy of the motion shall be served upon the prosecutor. The prosecutor shall not be required to respond to the motion unless ordered to do so by the Family Court pursuant to subsection (l) of this section.

(k) If it plainly appears from the face of the motion, any accompanying exhibits, affidavits, and documents, and the record of any prior proceedings in the case, that the movant is not eligible for relief or is not entitled to relief, the Family Court may dismiss or deny the motion.

(l) If the motion is not dismissed or denied after initial review, the Family Court shall order the prosecutor to file a response to the motion. The prosecutor shall file the response within 60 days of the issuance of the order except where the arrest was not presented to the prosecutor for a charging decision, in which case the prosecutor shall file the response within 90 days of the issuance of the order.

(m) Upon the filing of the prosecutor’s response, the Family Court shall determine whether a hearing is required.

(n) If the Family Court determines that a hearing is required, the hearing shall be scheduled promptly.

(o) At the hearing, the movant and the prosecutor may present witnesses and information by proffer or otherwise. Hearsay evidence shall be admissible.

(p) An order dismissing, granting, or denying the motion shall be in writing and include reasons.

(q) The Family Court shall not be required to entertain a second or successive motion for similar relief on behalf of the same movant regarding the same offenses or arrests unless the previous motion was dismissed or denied without prejudice.

(r) An order dismissing, granting, or denying a motion for sealing is a final order for purposes of appeal.

(s) Records sealed pursuant to this section shall be opened only on order of the Family Court upon a showing of compelling need, except that, upon request, the movant shall be entitled to a copy of the sealed records to the extent that such records would have been available to the movant before relief under this section was granted. A request for access to sealed court records may be made ex parte.

(t) Any person, upon making inquiry of the Family Court concerning the existence of records of arrest, court proceedings, or adjudications involving an individual, shall be entitled to rely, for any purpose under the law, upon the clerk’s response that no records are available under subsection (h)(7) of this section with respect to any issue about that person’s knowledge of the individual’s record.