How to Keep a Criminal Charge Off Your Record in Massachusetts

A person charged with a crime in Massachusetts wants to know whether the charge will show up on a criminal record or a background check, and wants to know how to keep the charge off that record. A person accused of a crime in Massachusetts can avoid a searchable criminal record in three ways.

A case that ends before arraignment never becomes part of the person’s criminal offender record information, called CORI. A case that ends after arraignment without a conviction still leaves a court record, but an employer with standard access to CORI stops seeing the case once the case ends. A sealed record stays on file, but most employers, landlords, and licensing boards can no longer see the sealed record.

A college student and a licensed professional face consequences from a charge beyond the court case. A student’s college or university may open a conduct proceeding over the same arrest. A graduate school, a bar examiner, or an employer may later ask about any charge, including a dismissed charge. A nurse, a physician, a teacher, a lawyer, or a financial professional may have to report an arrest or a charge to a licensing board even when the case ends without a conviction. The firm’s pages on college and university student criminal defense and on criminal charges and professional licenses explain those consequences.

The sections below explain what a Massachusetts criminal record shows and then explain each way a case can end without a criminal conviction. Those ways are a clerk-magistrate hearing that ends with no complaint, pretrial diversion, pretrial probation, a continuance without a finding, a dismissal or a not guilty verdict, and a motion to convert a misdemeanor to a civil infraction under G.L. c. 277, § 70C. The page ends with sealing, which limits who can see a record that already exists, and expungement, which destroys a record in narrower circumstances.

What Shows Up on a Massachusetts Criminal Record

Two sources hold most of the official information about a Massachusetts criminal case. The Department of Criminal Justice Information Services keeps CORI, the database that employers, landlords, and licensing boards check. The clerk of the court keeps the court’s own records of the case, which are generally open to the public unless the records are sealed or impounded. Police departments also keep their own reports. Private background-check companies may keep information they collected before a record was sealed.

The arraignment creates the CORI entry. CORI does not include a case that is dismissed before arraignment, and CORI does not include an offense that is not punishable by incarceration. G.L. c. 6, § 167.

An employer, a landlord, or a licensing board with standard access to CORI sees pending charges, including a case continued without a finding until the judge dismisses the case. The same requestor sees a misdemeanor conviction for five years after the disposition or the end of any incarceration, and sees a felony conviction for ten years after the disposition or the end of any incarceration. G.L. c. 6, § 172.

An older conviction stays visible longer when the person has a more recent conviction. The older conviction stays visible for as long as the most recent conviction is still visible. These periods limit what a standard-access requestor sees. The record stays in the CORI database after a period ends. A conviction for violating a 209A restraining order or a 258E harassment prevention order counts as a felony for the CORI access periods and stays visible for ten years. A conviction for murder, manslaughter, or a sex offense punishable by state prison stays on CORI permanently unless a court seals it.

A dismissed case, a not guilty verdict, and a continuance without a finding that the judge has dismissed are not convictions, so a standard-access employer does not see them once the case is no longer pending. Police departments, courts, and some agencies have broader access and can see the full record, including dismissals. The firm’s page on who sees a Massachusetts criminal record explains each level of access, and the firm’s page on arraignment in Massachusetts explains what the arraignment adds to the record.

Ending a Case Before Arraignment at the Clerk-Magistrate Hearing

A person who is accused of a misdemeanor but not arrested has a right to a hearing before a clerk-magistrate decides whether to issue a criminal complaint. G.L. c. 218, § 35A. The clerk-magistrate may issue the complaint without a hearing when there is an imminent threat of bodily injury, of the commission of a crime, or of flight from Massachusetts. The clerk-magistrate hears from the police officer or the citizen who applied for the complaint and from the accused person or counsel.

A clerk-magistrate who finds probable cause may still decline to issue the complaint, unless the district attorney’s office has told the clerk-magistrate that the office intends to prosecute. Victory Distributors, Inc. v. Ayer Division of the District Court Department, 435 Mass. 136, 142 to 143.

A clerk-magistrate’s denial of the application means that no complaint issues, no arraignment takes place, and no CORI entry results from the application. The police department may still keep its report of the incident. The clerk-magistrate may also hold the application open without issuing a complaint, often on a condition such as no new offense for a stated period, and close the application once the person meets the condition. The firm’s pages on the Massachusetts clerk-magistrate hearing and the clerk-magistrate hearing FAQs explain the hearing in detail.

A driver who receives a criminal citation for a misdemeanor motor vehicle offense, with no arrest and no accompanying felony, must request the clerk-magistrate hearing in writing within four days of the violation. G.L. c. 90C, § 3(B)(2). The clerk-magistrate may issue the complaint without a hearing when the driver makes no timely written request. The firm’s article on the four-day deadline explains how to make the request.

Pretrial Diversion Under G.L. c. 276A

A district court or a division of the Boston Municipal Court may divert a defendant to a program instead of prosecuting the charge. The defendant must be charged with an offense that is punishable by imprisonment and that the district court has final jurisdiction to decide. The defendant must have no adult criminal conviction other than a traffic violation not punishable by imprisonment, and no outstanding warrants, continuances, appeals, or pending criminal cases. A program must also recommend the defendant as someone who would benefit from the program. G.L. c. 276A, § 2.

The charge itself must be eligible. A judge cannot divert a defendant charged with an offense on the § 70C excluded list described below, an offense punishable by more than five years of incarceration, an offense that carries a mandatory minimum sentence of incarceration, or an offense that a judge may not continue without a finding or place on file. G.L. c. 276A, § 4.

The statute makes limited exceptions, including assault and battery under G.L. c. 265, § 13A(a), and an OUI charge against a veteran or service member who has never before been arrested for or charged with OUI and who has a clinically diagnosed traumatic brain injury, substance abuse disorder, or serious mental illness connected to military service.

A veteran, an active-duty service member, or a person with a history of military service may be diverted under a separate section, G.L. c. 276A, § 10, which has its own eligibility conditions. A qualifying veteran or service member may receive a thirty-day continuance for assessment instead of fourteen days. G.L. c. 276A, § 3.

A defendant who qualifies may ask the judge at arraignment for a fourteen-day continuance so that the program can assess the defendant. G.L. c. 276A, § 3. A defendant whom the judge finds eligible, who agrees in writing to the program’s plan of services, and who waives the right to a speedy trial receives a ninety-day stay of the criminal case. G.L. c. 276A, § 5.

The program may recommend an extension of up to ninety more days if the defendant needs more time, and the judge may grant the extension. The judge may dismiss the original charges when the program reports that the defendant completed the program. G.L. c. 276A, § 7.

Counsel may ask the judge to delay the arraignment while the program assesses the defendant. A case that the judge dismisses before arraignment never becomes part of CORI. G.L. c. 6, § 167.

Pretrial Probation Under G.L. c. 276, § 87

A judge may place a defendant on probation before trial, with the defendant’s consent, for the time and on the conditions the judge sets. G.L. c. 276, § 87. The defendant admits nothing. The Commonwealth agrees to the continuance and agrees in advance that it will not object to dismissal when the defendant completes the probation. The Supreme Judicial Court has held that a judge may not impose a long period of pretrial probation followed by dismissal over the Commonwealth’s objection, so pretrial probation as a disposition requires the Commonwealth’s agreement. Commonwealth v. Tim T., 437 Mass. 592, 596 to 597.

A defendant on pretrial probation who violates a condition does not face a guilty finding because of the violation. The case instead returns to the trial list. Commonwealth v. Tim T., 437 Mass. 592, 596.

The charge appears on CORI as a pending case during the probation once the defendant has been arraigned. The judge dismisses the case when the defendant completes the probation without a new offense and meets every condition. A dismissed case is not a conviction, so a standard-access employer no longer sees the case after the dismissal. The firm’s page on CWOFs, pretrial probation, and diversion compares the three dispositions.

A Continuance Without a Finding and Your Record

A defendant may admit that the Commonwealth has sufficient facts to prove the charge and ask the judge to continue the case without a finding to a stated date, on stated conditions, with the case to be dismissed on that date. G.L. c. 278, § 18. Lawyers call this disposition a CWOF. A judge cannot continue a charge without a finding when a statute prohibits that disposition for the charge, as G.L. c. 269, § 10(a) does for carrying a firearm without a license.

The judge enters no guilty finding on a CWOF. A defendant who violates a condition faces a hearing at which the judge may enter the guilty finding and sentence the defendant. The firm’s page on violating a CWOF explains that hearing.

A CWOF appears on a standard-access CORI report as a pending case until the judge dismisses the case. G.L. c. 6, § 172. The dismissed case is not a conviction, so a standard-access employer no longer sees it after the dismissal. A CWOF still counts against a defendant under some statutes. The OUI statute counts an admission to sufficient facts as a conviction, so a CWOF on an OUI charge can count as a prior offense if the person is charged with OUI again. G.L. c. 90, § 24(1)(d). Federal immigration law imposes its own consequences on a continuance without a finding, as explained below.

Dismissal, Nolle Prosequi, and a Not Guilty Verdict

A judge may dismiss a complaint for a defect in the complaint, for lack of probable cause, or for a violation of the defendant’s right to a speedy trial. A judge may also dismiss a complaint for failure to prosecute when the Commonwealth is not ready for trial. A dismissal for failure to prosecute is ordinarily without prejudice, so the Commonwealth may bring the charge again. The Commonwealth can end a case on its own by filing a nolle prosequi. The firm’s page on how criminal cases get dismissed in Massachusetts covers each ground.

A judge may dismiss certain misdemeanor charges after the person injured acknowledges in writing that they received satisfaction for the injury. G.L. c. 276, § 55. The statute excludes domestic abuse charges, violations of restraining orders, and offenses committed by or against a sheriff or another officer of justice, among others. The firm’s page on accord and satisfaction explains the procedure.

A dismissal, a nolle prosequi, and a not guilty verdict all end the case without a conviction, but each leaves the court record on file until the record is sealed.

The Commissioner of Probation, the clerk, and the probation office must seal the record of a case that ends in a not guilty verdict, a no bill from the grand jury, or a finding of no probable cause, unless the defendant asks the Commissioner in writing not to seal the record. G.L. c. 276, § 100C. Sealing of an acquitted charge is mandatory even when other charges in the same case end differently. Commonwealth v. J.F., 491 Mass. 824.

A person whose case ended in a dismissal or a nolle prosequi must petition the court to seal the record. The judge seals the record when good cause supports sealing. The judge weighs the disadvantages the record causes the person, such as difficulty finding work or housing, against the public’s interest in access to court records. The judge also considers evidence of rehabilitation, the time since the case ended, and the nature of and reasons for the dismissal or nolle prosequi. Commonwealth v. Pon, 469 Mass. 296, 313 to 318. The firm’s page on dismissal and not guilty outcomes compares the two results.

Converting a Misdemeanor to a Civil Infraction Under G.L. c. 277, § 70C

A person charged with a misdemeanor or a violation of a municipal ordinance or by-law may ask the judge to treat the charge as a civil infraction instead of a crime. G.L. c. 277, § 70C. The defendant or the Commonwealth makes the request by oral motion at arraignment or at the pretrial conference. The judge may also raise the question on the judge’s own motion at any time.

A judge who allows the motion converts the criminal case into a civil case. The judge can then find the person responsible and impose a fine but cannot sentence the person to jail or the house of correction. Lawyers often call the conversion decriminalizing the charge.

The Commonwealth can prevent the conversion by filing a written objection that states its reasons. G.L. c. 277, § 70C. The judge cannot convert the charge after the Commonwealth files a written objection, even on the judge’s own motion. The Commonwealth must keep a copy of every objection and must report to the House and Senate Committees on Ways and Means every six months how many objections it filed in each district court division. A defendant who wants a conversion therefore raises the request with the assistant district attorney before the hearing, because a written objection ends the request.

The statute sets no written test for the judge to apply. The judge decides whether to allow the motion in the judge’s discretion after hearing from the defense and the Commonwealth. The Legislature can also decriminalize an offense for everyone by changing the statute, as it has done for some marijuana offenses. The firm’s page on what the Massachusetts Legislature decides in a criminal case covers that kind of decriminalization.

Charges a Judge Cannot Convert

Section 70C applies only to misdemeanors and to ordinance and by-law violations, so a judge cannot convert a felony. A misdemeanor is any crime that is not punishable by a sentence to state prison. G.L. c. 274, § 1. The firm’s page on felonies and misdemeanors in Massachusetts explains the difference. Section 70C also names misdemeanors that a judge cannot convert. G.L. c. 277, § 70C. The excluded offenses include the following.

• Operating under the influence and every other offense in G.L. c. 90, § 24, including negligent and reckless operation and leaving the scene of an accident, along with the related offenses in G.L. c. 90, §§ 22F, 24D, 24G, 24L, and 24N, and boating under the influence under G.L. c. 90B, §§ 8, 8A, and 8B.
• Violating a 209A restraining order and every other offense in G.L. c. 209A.
• Every offense in G.L. c. 265, including assault and battery, assault and battery on a family or household member, criminal harassment, and stalking.
• Larceny from the person under G.L. c. 266, § 25.
• Perjury, intimidation of a witness, and the other offenses the statute lists from G.L. c. 268, and every offense under the state conflict of interest law, G.L. c. 268A.
• The firearms offenses in G.L. c. 269, § 10 and the related weapons sections the statute lists.
• The sexual offenses the statute lists from G.L. c. 272, including open and gross lewdness and the child pornography offenses.
• The listed offenses involving children in G.L. c. 119, and every offense in G.L. c. 119A and G.L. c. 209.

Many common misdemeanors are not on the excluded list. A judge may convert a charge of shoplifting under G.L. c. 266, § 30A, larceny of property worth $1,200 or less under G.L. c. 266, § 30, trespass under G.L. c. 266, § 120, disorderly conduct under G.L. c. 272, § 53, a first offense of possession of a controlled substance under G.L. c. 94C, § 34, or unlicensed operation under G.L. c. 90, § 10. The judge still decides whether to allow the motion on each of those charges, and the Commonwealth can still file a written objection.

What Happens After the Judge Allows the Motion

The case becomes a civil case once the judge allows the motion. Commonwealth v. Drury, 79 Mass. App. Ct. 843, 846 to 848. The court does not appoint counsel for a person whose case proceeds as a civil infraction. The court also revokes any appointment of counsel already made. G.L. c. 277, § 70C. A person who wants a lawyer for the civil case must retain one.

The Commonwealth must prove responsibility by a fair preponderance of the evidence, the standard the court applies in civil cases. Commonwealth v. Franck, 1998 Mass. App. Div. 125. A judge who finds the person responsible adjudicates the person responsible for the civil infraction and cannot sentence the person to jail or the house of correction. The judge may impose a fine of up to $5,000 when the underlying ordinance, by-law, or misdemeanor sets no civil fine. The judge may also order restitution. G.L. c. 277, § 70C.

For some charges the civil fine can exceed the criminal fine. A person convicted of trespass faces a criminal fine of no more than $100, but a person found responsible for trespass as a civil infraction faces a fine of up to $5,000.

An adjudication of responsibility is not a criminal conviction. The statute provides that the adjudication does not count as a prior offense when a later charge depends on how many prior offenses the person has, and that the adjudication cannot be the basis for revoking parole or for a probation surrender. G.L. c. 277, § 70C. A person on probation in another case therefore cannot be found in violation of that probation because of the civil adjudication. The complaint and the arraignment remain in the court’s records, so the conversion changes the disposition of the case rather than erasing the case.

Appealing a Finding of Responsibility

A person found responsible after a conversion appeals first to the Appellate Division of the District Court, not to the Appeals Court. Commonwealth v. Drury, 79 Mass. App. Ct. 843, 846 to 848. The notice of appeal is due within ten days after the entry of judgment under Rule 4(a) of the District/Municipal Courts Rules for Appellate Division Appeal. A party who loses in the Appellate Division may then appeal to the Appeals Court. G.L. c. 231, § 109.

Sealing and Expunging a Record After the Case Ends

A person with a misdemeanor conviction may ask the Commissioner of Probation to seal the record three years after the disposition and the end of any incarceration. A person with a felony conviction may ask seven years after the disposition and the end of any incarceration. The person must have no new conviction during that period, other than a motor vehicle offense punishable by a fine of $50 or less. G.L. c. 276, § 100A.

A sex offense is not eligible for sealing until fifteen years after the disposition, or for as long as the person has a duty to register as a sex offender, whichever is longer. A sealed record does not disqualify a person from public employment. A person with a sealed record may also answer “no record” on an application for employment, housing, or a professional license.

A court may expunge a record in narrower circumstances. Expungement destroys the record, while sealing hides the record from most requestors. A court may expunge a record created by false identification or identity theft, by an offense that is no longer a crime, or by a demonstrable error of the police, a witness, or a court employee. G.L. c. 276, § 100K.

A person whose offenses all occurred before the person’s twenty-first birthday may petition for a time-based expungement of up to two records, three years after a misdemeanor and seven years after a felony, under G.L. c. 276, §§ 100G to 100J, which also exclude many offenses. The firm’s guide to sealing and expunging a Massachusetts criminal record and its page on sealing and expungement standards explain the petitions, the waiting periods, and the exclusions.

Immigration and Professional License Questions

A noncitizen should have an immigration lawyer review any proposed plea, admission, continuance without a finding, or conversion before the judge accepts it. Federal immigration law imposes its own consequences on a conviction or a continuance without a finding. An immigration application or interview may also ask about the arrest or about the conduct described in the police report, whatever the outcome of the case. An immigration lawyer should review the exact question, the client’s immigration status, and the court record before the client files the application or attends the interview. The firm’s page on the immigration consequences of Massachusetts criminal charges explains those risks.

A licensed professional may have to report an arrest, a charge, or the outcome of a case, depending on the licensing board and the wording of the board’s question. Attorney Serpa reviews the board’s reporting rule with the client before the client accepts any plea, admission, continuance without a finding, or conversion. The firm’s page on criminal charges and professional licenses explains the reporting rules by profession.

Attorney Joe Serpa represents people charged with misdemeanors and felonies in the district courts, the Boston Municipal Court, and the Superior Court across Greater Boston. He has practiced Massachusetts criminal defense since 1995. Contact Serpa Law Office at 617.936.0201. The Boston office is at 20 Park Plaza, Suite 400A, and the Quincy office is at 500 Victory Road, Suite 400A.