In Massachusetts, your criminal record is created when a criminal complaint issues against you and after you are arraigned in court.
Once arraigned, these charges will show up on both your Criminal Offender Record Information (“CORI”), which is your Massachusetts state criminal record, and your federal criminal record maintained by Criminal Justice Information Services (“CJIS”).
When certain requirements are met, you may be eligible to petition for the expungement of these criminal records.
What is expungement?
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Expungement is the permanent erasure or destruction of your criminal record so that it is no longer accessible to, or maintained by, the court, any criminal justice agencies, or any state, municipal or county agency.
You may be eligible to expunge both your adult and juvenile criminal records in certain circumstances. Expunging your criminal record results in the removal of your criminal record from both your CORI and the federal criminal database maintained by CJIS.
Qualifying for an expungement
Any person (“petitioner”), whether charged as a juvenile or adult, who has not more than two cases on their record from any state or jurisdiction, other than motor vehicle offenses in which the penalty does not exceed $50.00, may petition the Commissioner of Probation (“commissioner”) to expunge their record.
It is important to note that multiple offenses arising out of the same incident are considered a single offense.
In order to be eligible for expungement, the following criteria must be met:
- (1) all offenses must have occurred before the petitioner’s twenty-first birthday;
- (2) if the offense is a felony, all sentencing elements, including incarceration or probation, were completed not less than seven years ago;
- (3) if the offense is a misdemeanor, all sentencing elements, including incarceration or probation, were completed not less than three years ago;
- (4) the petitioner is not the currently the subject of an active criminal investigation; and
- (5) the offenses are not listed under M.G.L. c. 276, § 100J.
These offenses under M.G.L. c. 276, § 100J include:
- (1) an offense resulting in, or committed with the intent to cause, death or serious bodily injury;
- (2) an offense committed while armed with a dangerous weapon;
- (3) an offense against an elderly or disabled person;
- (4) a sex offense, with limited exception;
- (5) operating under the influence of liquor or drugs;
- (6) negligent or reckless operation of a motor vehicle;
- (7) a firearm offense, with limited exception;
- (8) violation of an abuse or harassment prevention order;
- (9) assault or assault and battery on a family or household member; and
- (10) an offense in violation if M.G.L. c. 265, which includes a list of crimes committed against another person.
If the petitioner was adjudicated delinquent or as a youthful offender in juvenile court, or convicted as an adult, and they are deemed ineligible for expungement, the commissioner shall, within sixty days of receiving the petition, deny the request in writing.
If the petitioner is eligible, the commissioner shall, within sixty days, notify the district attorney of the petition, and within sixty days of receipt of notification from the commissioner, the district attorney shall notify the commissioner in writing of their objections, if any.
Upon receipt of any response from the district attorney, or within sixty-five days of the commissioner’s notification to the district attorney, whichever occurs first, the commissioner shall forward the petition, and any objections, to the court where the petitioner was originally charged.
If the district attorney files an objection
The court shall, within twenty-one days of receipt of the petition, conduct a hearing. If the district attorney does not file an objection, the court may approve the petition without a hearing. Whether an objection is filed by the district attorney or not, the court has the discretion to grant or deny the petition based on what is in the best interests of justice. Once the court issues its order, it is then forwarded to the clerk of the court where the offense occurred, the commissioner and the commissioner of CJIS.
If the petitioner was not adjudicated delinquent or as a youthful offender in juvenile court, or was not convicted as an adult, for instance, they were found not guilty after trial, their case was dismissed by the court or the district attorney, or the grand jury failed to return an indictment, there are a few subtle differences in the above-referenced procedure:
- (1) if the petitioner is deemed ineligible, the commissioner has only thirty days to deny the request;
- (2) if the petitioner is eligible, the commissioner has only thirty days to notify the district attorney of the petition; and
- (3) if the district attorney has any objections, it has only thirty days upon receipt of the petition to notify the commissioner.
Under a narrow set of circumstances, an expungement request can be filed directly with the court. In order for a petition of this nature to be granted, the court must find by clear and convincing evidence that the record was created as a result of false identification or identity theft, the offense is no longer a crime, there was an error or errors committed by law enforcement, civilian witnesses, expert witnesses, and/or court personnel, or if there was a fraud perpetrated on the court.
In this instance, the court still has the discretion to grant or deny the petition based of what is in the best interests of justice, however it is only required to hold a hearing if requested by the petitioner or district attorney. Once the court issues its order, again, it is then forwarded to the clerk of the court, the commissioner and the commissioner of CJIS.
If you successfully expunge your record, you can indicate that you have no record with respect to any inquiry regarding your expunged record on any application for employment for any county, municipal or state agency. If you were arrested or charged with a crime in Massachusetts, and believe you may be eligible to have your criminal record expunged, call the Law Office of John L. Calcagni, III New Bedford, MA for a free consultation.
