Expunging or Sealing Your Criminal Record
A Massachusetts criminal case will only show on your record after you have been "arraigned" in a Massachusetts criminal court, and a not guilty plea has been made on your behalf. Before that very important moment, there is no formal record of your case. A Massachusetts clerk-magistrate's hearing, also known as show-cause hearing, does not show on your Massachusetts criminal record. Boston criminal lawyer Joe Serpa has succeeded hundreds of times in having cases dismissed before arraignment, either at a Massachusetts clerk magistrate's hearing, also known as a show cause hearing, or even after a show-cause hearing but before arraignment. These cases, dismissed before arraignment, never show on your criminal record for any purpose, whether by law enforcement or otherwise.
Once you are arraigned in court, your Massachusetts criminal case shows on your criminal record as an "open" matter. You can ask the court to seal your record only after it has been resolved.
As discussed below, sealing a Massachusetts criminal record is a powerful and effective way to preserve your future after a Massachusetts criminal case is dismissed, continued without a finding ("CWOF") or even if you plead or are found guilty of a Massachusetts misdemeanor or felony. Once your Massachusetts criminal case is sealed, it disappears from view for almost all purposes, including employment applications, educational institutions and housing providers or landlords. When you can ask the court to seal your case varies depending on the outcome of the case, as we discuss below.
What is the Difference Between Sealing and Expungement in Massachusetts?
Expunging an adult Massachusetts criminal case takes your criminal case off the books completely. Expungement is defined in section 100E of the General Laws as “the permanent erasure or destruction of a record so that the record is no longer accessible to, or maintained by, the court, any criminal justice agencies or any other state agency, municipal agency or county agency.”
It is a very narrow remedy for very specific and unusual circumstances. What is expungement and when should I get a case expunged?
Sealing of a case limits who has access to the record of the criminal case. Expungement destroys and are no longer available. Massachusetts allows expungement in two circumstances:
Expungement if you had only ONE criminal case when you were UNDER 21 YEARS OLD, or a juvenile case. This includes expungement of (1) a juvenile court case or (2) an adult case where the INCIDENT that led to the case happened before you were age 21. For both people under 21, and juvenile cases, you must not have had any additional criminal cases. Like sealing, there are certain offenses that can never be expunged.
Section 100K expungement. This includes expungement of juvenile or adult cases where a person was incorrectly named as the defendant, 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. To expunge a Massachusetts criminal case, you must show that some serious error or fraud has led to you being incorrectly identified as the the accused person. This is different from being not guilty of an accusation. This means that the court has mistaken you as the person that should be charged with a crime. This usually happens to people with similar names and dates of birth as the person who should have been charged. Other serious errors, such a fraud on the court, can lead to expungement of your Massachusetts criminal case.
These are very, very rare exceptions:
- identity theft, false or unauthorized use of identity (e.g. somebody impersonated you or misused your name);
- a decriminalized offense (e.g. marijuana possession under 2 ounces; being in the presence of heroin; disrupting assembly or disorderly conduct at an elementary or high school when you were a student there; a juvenile case
filed against a child under 12 because these cases can no longer be prosecuted);
- errors by law enforcement (e.g., misidentification of a defendant; errors related to failed perception or other
impairment, misconduct or racial bias that resulted in filing a complaint in error or without probable cause);
- errors by witnesses (civilian or expert) (e.g. cases dismissed due to the Annie Dookhan or Sonia Farak drug lab
scandals; mistakes based on failed memory or perception, or other impairment; errors related to misconduct or
racial bias; lack of scientific basis for expert opinion);
- errors by court employees (e.g. complaint issued due to clerical error, or docket entry mistake that carries a
stigma or causes adverse consequences); or
- demonstrable fraud perpetrated on the court (bribery of a judge or other fraud involving the court system itself).
You can file your petition for expungement three years from the date of a misdemeanor offense, and seven years from the date of a felony offense, so long as specified eligibility requirements are met. Mass. Gen. Laws ch. 276, § 100(I). Many kinds of crimes are not eligible for sealing, including violent crimes, sexual offenses, and violations of various restraining orders. Mass Gen. Laws ch. 276, § 100J.
Again, courts are also authorized to order expungement of a criminal or juvenile court record based on false identification or identity fraud, or official error. Mass Gen. Laws ch. 276, § 100K. Expungement is also authorized where the conduct is no longer criminal.
Sealing your Massachusetts criminal record or criminal case is, for most practical purposes, as effective as expunging a case. This will hide the fact that you were ever arrested for the charge from all potential employers, landlords and educational institutions. Contrary to some myths, a sealed Massachusetts criminal case will be concealed from view and removed from your Massachusetts, federal and interstate CORI. There will be no viewable record at all, not even an entry suggesting that a case once existed in any way or that it has been sealed or removed from public view in any way.
Massachusetts General Laws Chapter 6, section 172 describes how comprehensive the sealing of your Massachusetts criminal record is. Once your Massachusetts criminal record is sealed, only law enforcement will continue to have access to your sealed record. In very limited cases, the state, or a town or city, can have access to your sealed record if you apply for a license to carry a firearm. Finally, if you are in family court on a child custody or domestic abuse case after your Massachusetts criminal record has been sealed, the family court judge can sometimes view your sealed record "in camera," which means that only the judge sees the record.
FEDERAL background checks search for your record in an FBI database. These are not common. Massachusetts courts are required to instruct the FBI to also seal a Massachusetts record that has been sealed at the state level. However, the FBI has not obeyed this directive in many cases. For now, you should assume that a sealed Massachusetts record will show if you apply for a position that includes a fingerprint-produced FBI background check.Do I Have to Tell Employers or Other Institutions About My Sealed Massachusetts Criminal Record?
No. The Massachusetts record-sealing statute permits you to truthfully answer "no record" if you have had a Massachusetts criminal case sealed. If a potential employer, educational or housing institution asks the Massachusetts Department of Criminal Justice Information Services (DCJIS) or the Department of Probation if you have a criminal record, those agencies must also answer that you have no record.
Boston Criminal Defense Lawyer Joe Serpa has years of experience in resolving cases so that they will not show on your criminal record at all, and of sealing records when all else has failed.When can I Seal a Massachusetts Criminal Case or Criminal Record if I Was Found Guilty or if I Pled Guilty?
This depends on the Massachusetts crime your were accused of and how your case ended.
For misdemeanor convictions, you must wait three years before applying to have their records sealed. For felony charges, you must wait seven years before applying to have the CORI sealed. Applicants can file either three or seven years from the date of their guilty plea or verdict, or from the date they entered custody related to a conviction of the charge, whichever date is later.
Individuals who have been convicted of Massachusetts sex offenses may apply to have their criminal records sealed 15 years after the date of conviction or any time in custody related to the conviction of the sex offense. However, if your Massachusetts conviction requires you to register as a sex offender, you may not seal the record while you are require to register.
Also, these three, seven and fifteen-year periods "toll." That means that the periods are extended if there is a new entry on your criminal record before the three, seven or fifteen-year period expires. For example, a misdemeanor conviction from the year 2000 would be eligible for sealing in 2003. However, if you have a new misdemeanor conviction in 2002, you must wait three years, until 2005, to seal both the 2000 and the 2005 convictions. In other words, the sealing date of the later case controls the earlier case as well.When can I Seal my Massachusetts Criminal Case if I was not Convicted?
1.A Massachusetts Continuance Without a Finding ("CWOF"), Pretrial Probation or Dismissal may be Sealed Immediately Upon Dismissal.
Massachusetts criminal cases that end in dismissal show as "open" cases on your Massachusetts CORI from the day of your arraignment until the day they are disposed of by dismissal. Once your case is dismissed, you are eligible to ask the court to seal your Massachusetts criminal case.
2.Sealing Massachusetts CWOF's or Dismissals: Do I Need a Judge to Seal my Record?
If your case is continued without a finding ("CWOF") or you receive pretrial probation, the case will show as an "open" matter on your Massachusetts CORI until the period of pretrial probation or the "CWOF" ends, or terminates. At that point, the case is dismissed. If you do not petition the court to seal that record, it will show as a "dismissed" case. However, once the case is dismissed you are free to ask the court to seal your criminal record of the case, and you should.
If you want the record of the dismissal sealed immediately, you must file a petition to seal with the court that heard the case. There will be a hearing in which you must show the judge that the presence of the case on your record is hurting your career, housing or other life issues.
You do not have to see a judge if you can wait to seal your dismissed case. Sealing of dismissals and dismissed CWOF's can occur via the Department of Probation after three years for misdemeanors or seven years for felonies, as discussed above.
So, dismissed Massachusetts criminal cases can be sealed by a judge immediately upon dismissal. This will hide the fact that applicants were ever arrested for the charge. Contrary to some myths, the fact of the entire case will be sealed from view and removed from your Massachusetts, federal and interstate CORI. There will be no record at all, not even an entry suggesting that your case has been sealed or removed from public view.How to Seal a Massachusetts Criminal Record.
In Massachusetts, you can seal your CORI (Criminal Offender Record Information) so that only a limited number of people, if any at all, will be able to view your criminal history. Parties such as potential landlords, employers, or other entities performing background checks will not be able to determine that you have a criminal history if your CORI is sealed. Only certain public safety employers and law enforcement agencies will have special access to the case.
To apply for the CORI to be sealed, most applicants must file a petition with the Massachusetts court that heard your case. After the petition is filed, a judge will review the petition and supporting documents. If the judge believes there is a reason to grant the request, he or she will schedule a hearing. At the hearing, applicants must show good cause as to why their criminal record should be sealed.
Generally, people who can show a negative impact on their futures, such as their employment prospects, school applications or housing applications, for example, can have their Massachusetts criminal records sealed. Applicants can be represented by an attorney at this hearing, and they should be. In contrast, if after receiving an application, a judge does not believe that the applicant’s CORI should be sealed, the judge can deny the request without a formal hearing.
At the conclusion of a hearing, a judge can issue a ruling from the bench, or he or she can take it under advisement and issue a written ruling or order at a later time. If a judge denies a request, applicants can appeal the judge’s decision by filing an appeal with the Massachusetts Appeals Court. It is also important to note, however, that many criminal histories are sealed without a formal hearing if there has been sufficient passage of time without any other criminal activity.Contact Boston Attorney Joe Serpa If You are Accused of a Crime.
The assistance of a knowledgeable lawyer is indispensable for people accused or convicted of a Massachusetts domestic violence crime, a Massachusetts drug crime, Massachusetts OUI or DUI, or another offense in the Boston area. If you are trying to seal your CORI and get a fresh start. Boston Criminal Lawyer Joe Serpa has over 20 years of experience. He can provide the dedication and skill you need when navigating this and other types of court processes. The Serpa Law Office also serves individuals in Quincy, Brockton, Framingham, and Newton, as well as throughout Middlesex, Norfolk, Essex, Plymouth and Suffolk Counties. Call us at 617.936.0201 or contact us online to schedule a free meeting to talk about your case.