A criminal conviction has negative consequences long after the court process is over. A criminal record can limit employment opportunities, housing options, educational opportunities, the ability to obtain student financial aid, and professional licensing. Many schools prohibit parents with criminal records from volunteering at their child’s school. In certain circumstances, criminal records in Massachusetts can be expunged or sealed. It can be difficult to navigate the process so it is helpful to speak with an experienced criminal defense attorney who can review your options.
Do I have a criminal record?
In Massachusetts, once a person is arraigned on a criminal charge (which involves appearing before a judge, having the charge(s) read out in open court, and entering a plea of “not guilty” or “guilty”), they will have an entry in their CORI (“Criminal Offender Record Information.”) Even if the charges are later dismissed or a jury finds the defendant not guilty, there is a remaining entry in one’s CORI. Massachusetts state law allows records to be expunged or sealed even if the result was a conviction.
What’s the difference between expungement and sealing?
Expungement means that the court records of the case are destroyed and are no longer available for anyone to review. The record would not show up on a CORI check. Sealing, in contrast, means that the records still exist but access to those records is severely limited. A sealed record would not show up on a standard CORI check nor would there be any indication on your CORI of the existence of a sealed record. Only certain entities, such as law enforcement, will be alerted that there is a sealed record but most employers would not have access to that information.
Do I want expungement or sealing?
Expungement is the mechanism to actually destroy court records but the category of records that can be expunged is very limited. Sealing is much broader in its application, so if you don’t qualify for expungement, the next step is to see if your record can be sealed.
What records can be expunged?
There are two categories of cases that can be expunged:
- Under 21. If the person was under 21 when the alleged criminal behavior occurred, regardless of whether the case was charged in the juvenile or adult court, AND the accused has had no further juvenile or criminal court cases, the case may eligible for expungement. If the charge is a felony, 7 years must have passed since the disposition (guilty or not guilty finding, dismissal) or release from incarceration (whichever happened later). If the charge is a misdemeanor, it cannot be expunged until 3 years after the disposition or release from incarceration (whichever happened later). There are many offenses that are not eligible for expungement, such as robbery, assault and battery with a dangerous weapon, and assault and battery on a family member, firearm violations, and restraining order violations.
- Section 100K expungement. Juvenile or adult cases are eligible for expungement if the accused person was innocent and misidentified, the offense was decriminalized, the case resulted from mistakes by police or others, or there were other miscarriages of justice as specified in Section 100K.
How does someone apply to expunge a qualifying “under 21” record?
You must fill out, sign and mail a petition to expunge to the Commissioner of Probation’s Office at One Ashburton Place, Boston, MA 02118.
How does someone apply for Section 100K expungement?
If a person was innocent and misidentified, the offense was decriminalized, the complaint issued due to mistakes by police or others, or there was some other miscarriage of justice as specified in section 100K, the accused must file a petition form in the court that handled the case. It is advisable to have a lawyer assist in this process. A judge must make a finding that the record was created as the result of one of the qualifying reasons for expungement under Section 100K. The most common qualifying basis under this section is that the offense is no longer a crime (such as marijuana possession of less than 1 ounce or being in the presence of heroin.) Another qualifying basis is that the accused was charged because someone used their name when they were arrested. Demonstrable errors by law enforcement or expert witnesses can also lead to expungement, such as drug charges/convictions that involved disgraced drug lab chemists Annie Dookhan or Sonya Farak (and others like them who will eventually be named). Errors by court personnel may also be grounds for an expungement.
Can my record be sealed?
Most criminal records can be sealed after a designated waiting period by sending a petition by mail to the Commissioner of Probation. A judge can also order a record sealed before the waiting period has passed.
Sealing Records by Mail
If enough time has passed since you were last in court or in jail on a particular case, the process for sealing is very straightforward and is done by mailing a Petition to Seal to the Commissioner of Probation. There is a 3 year waiting period for misdemeanors and 7 years for felonies. Cases where you were found guilty can only be sealed through this administrative process, except for a first-time drug possession conviction. Cases that ended in a “not guilty” finding, a dismissal or a nolle prosequi (a prosecutor dropped the case) also can be sealed by mail after the same waiting periods, or by a court following a hearing without a waiting period.
For any conviction, the waiting period starts from the date you were found guilty OR released from incarceration (whichever is later.) But every time a person is convicted or incarcerated, the clock re-starts to add another 3 years for a misdemeanor, and 7 years for a felony.
If you were found “not guilty” or your case was dismissed, or ended in a nolle prosequi, the waiting period runs from the date of this disposition. If your case was dismissed after a CWOF, the waiting period starts the day that the CWOF was imposed, and not the later date of dismissal.
Exceptions to the 3 year/7 year waiting period for sealing:
- Convictions for violations of a restraining order (both abuse prevention orders and harassment prevention orders) are treated as felonies for purposes of sealing records and have a 7 year waiting period. Dismissed cases can be sealed after 3 years.
- Any conviction for a sex offense that required registering with the Sex Offender Registry is not eligible for sealing until 15 years after the very last event in the case, including the end of supervision, probation, parole, or release from incarceration.
Sealing by a Court
A judge has the authority to seal cases that ended in a “not guilty” finding, a dismissal or a nolle prosequi without any waiting period. Judges also have the power to seal a first time drug possession conviction as long as the person did not violate the terms of probation or other requirements ordered by the court before the waiting period has passed. If you go into court it is recommended that you have a lawyer to assist in establishing that leaving the record public puts you at a disadvantage.
In Commonwealth v. Pon, 469 Mass. 296 (2014), the Supreme Judicial Court ruled a petitioner must demonstrate to the court “good cause” to seal a record prior to the waiting period elapsing. To show there is “good cause” to seal records, there must be “credible” evidence of a “disadvantage” at the present time OR possibly in the future related to your CORI. While Pon was intended to make it easier to seal a record as the Court lowered the requirement needed to justify sealing a record, the implementation of much-needed CORI reform that only permits convictions and open cases to appear on standard background checks has made judges reluctant to seal dismissed cases. Some judges will demand evidence of the person requesting the sealing of the record to show proof that they have been harmed (for example, they have been denied a job because a dismissed case erroneously appeared in their background check).
Some records can never be sealed
There are records that can never be sealed including but not limited to convictions for witness intimidation, certain firearms charges, perjury, escape from jail, and bribery of an elected official.
Once I seal or expunge all of my criminal cases, can I say that I have no record?
Yes. If present or future employers, landlords, or occupational licensing agencies ask for information that would involve your sealed or expunged cases, you may answer that you have “no record” with regard to those sealed or expunged cases. Your answer is truthful and accurate if the records have been expunged or sealed.
Contact us today to speak with an experienced criminal defense attorney
If you are in need of a legal assistance with expungement or sealing your criminal record, please contact the Law Offices of Keren Goldenberg.