Eligibility for Sealing/Expunging Adult Criminal Records in Massachusetts
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UPDATED: Jun 19, 2018
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Expunging a criminal record in Massachusetts is difficult. The records themselves, known as Criminal Offender Record Information (CORI), are created as soon as someone is arraigned. If you want your CORI removed, you have to seek out a court order for it. This means consulting a qualified criminal record expungement attorney in Massachusetts. In general, you can seal your record more easily than expunge it. Sealing is the process of removing something from public view and making it confidential. Massachusetts appellate decisions have construed the unambiguous language of G.L. c. 276, § 100C, as conferring on a judge the authority, in appropriate circumstances, to order sealing, but not expungement, of the probation and court records of dismissed prosecutions.”
There are three different ways to seal your criminal record in Massachusetts:
- Some convictions can be sealed after a long waiting period (10 years for felonies, 5 years for misdemeanors).
- Some cases can be sealed where there was no conviction (e.g. dismissed cases).
- Some misdemeanor drug possession cases can be sealed.
MGL c. 04C, s. 34 allows for the sealing of certain records for those who are convicted of unlawful possession of a controlled substance. Anyone who wasn’t previously convicted of a violation of this or any other law in Massachusetts or the United States relating to controlled substances, and who had their case continued without a finding to a certain date, or was convicted but placed on probation (and doesn’t violate any conditions of the probation), may have the proceedings against him dismissed by the court. This dismissal can include the sealing of all records relating to his arraignment, indictment, conviction, probation, continuance or discharge. The law does allow for the preservation of departmental records with basic identifying information and a statement that the record has been sealed (for administrative and basic recordkeeping purposes). The law also allows anyone who has had such a sealing ordered for them to deny ever having been indicted, convicted, or even arraigned for the crime in question (the technically correct response is “no record.”).
MGL c. 94C, s. 44 states: anyone found not guilty of a section 34 violation, or if the complaint was dismissed, or indictment nol prossed, the court will order all official records relating to arraignment, indictment, conviction, continuance, or discharge to be sealed. Note any departmental records maintained by police and other law enforcement agencies will be preserved as long as they are not publicly available. The motivation to seal is enormous: the number of groups or individuals in Massachusetts who may have reason to access your record has swollen, by some estimates, to more than 10,000.
If the complaint against you was dismissed because the complaint as issued was an error, a judge’s authority to expunge your record is limited. In Commonwealth v. Boe, 456 Mass. 337 (2010), it was held that a judge has no authority over the Commissioner of Probation to expunge a defendant’s record where the criminal complaint was dismissed because its “issuance was premised on a mistake.” Only when the judge is simply following the statute is the judge’s authority to order the sealing of a record unquestioned. The authority to expunge, however, is hardly settled law.
In Massachusetts, there are two waiting periods to apply for sealing: (a) 10 years after a felony conviction and (b) 5 years after a misdemeanor. These waiting periods are not always mandatory: in cases where:
- Conviction was for a first unlawful possession of a controlled substance, OR
- No probable cause was found (or the charge was nol prossed). If the charges against you weren’t dismissed, but you were found not guilty, then you may still be able to seal, if no pre-trial probation was assessed.
For other articles on Massachusetts expungement of criminal records, click on the following: