Sealing and Expunging Criminal Records in Massachusetts
In Massachusetts, an individual’s criminal record is known as a Criminal Offender Record of Information (“CORI”). The CORI is created whenever someone is charged with a crime after they are arraigned in court. This includes both juvenile and adult charges. Under certain conditions, someone charged with a crime may apply for the expungement or sealing of the CORI record or entries thereon under Massachusetts law.
What is an Expungement?
Expungement of a record is the permanent erasure or destruction of the record so that it is no longer accessible to, or maintained by, the courts or Massachusetts State or local government agencies.
An expungement is possible for both adult and juvenile criminal convictions under limited circumstances. A conviction may be expunged at the end of any incarceration and/or probationary period, or the disposition of the case, after the passage of 7 years for a felony and after the passage of 3 years for a misdemeanor. There are, however, other requirements that must be met besides the passage of time.
How to qualify for an expungement in Massachusetts?
To be eligible for expungement, the conviction cannot be one of the exempted crimes listed by law, which include crimes:
- resulting in death or serious bodily injury;
- committed with the intent to cause death or serious bodily injury;
- committed while armed with a dangerous weapon;
- committed against an elderly or disabled person;
- that are sex offenses which you have to register for;
- of operating under the influence of drugs or alcohol;
- that are gun or firearm offenses;
- violating a restraining, no contact or no harassment order;
- and of domestic violence
The qualifying offense must have occurred before the petitioner’s 21st birthday.
The petitioner must not have any other court appearances on his or her CORI except for motor vehicle offenses in which the penalty did not exceed $50, and he or she cannot currently be the subject of any criminal investigation.
Under certain circumstances where a petitioner does not meet these requirements, a court may still order a record to be expunged upon a finding of 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 were errors committed by law enforcement, civilian or expert witnesses, and/or court personnel; or if there was a fraud perpetrated on the court.
What is the expungement process in Massachusetts?
Seeking expungement begins with a petition directly to the Commissioner of Probation who determines the petitioner’s eligibility for expungement.
Whether eligible or not, the Commissioner will notify the petitioner within 60 days. If eligible, the Commissioner will also notify the District Attorney’s (“DA”) Office to give it opportunity to object to the petition.
Upon receiving the DA’s objection or 65 days after sending notice to the DA, the Commissioner will send the petition to the court. If there is no objection, the court may allow the petition without a hearing. If there is an objection, the court will hold a hearing within 21 days from its receipt of the petition.
If the petition for expungement is granted, the expunged record may not be used against an individual for any purpose and that person may claim to have no arrests or convictions in his or her criminal history.
Expunged records are not public. Further, members of the general public are excluded from court hearings related to expungement.
How is Sealing of records different than expungement in MA?
Sealing a record is different than expungement. Sealing is where the record still exists and is maintained, opposed to being destroyed, but access to it is limited.
Felony convictions shall be sealed after the passage of 7 years from the date of offense, and misdemeanor and juvenile convictions after passage of 3 years from the date of offense. Upon sending a petition to seal to the Commissioner of Probation, except for certain limited offenses, these records are automatically sealed.
When a case is dismissed, or a defendant is found not guilty, and the time for sealing eligibility has not passed, one may petition the court directly to seal the record upon a showing that “good cause exists” for sealing.
Examples include but are not limited to barriers to housing and employment opportunities from the existence of the publicly available criminal record, disadvantages, evidence of rehabilitation, likelihood of recidivism or success, passage of time and the nature and reasons for the particular disposition.
Petitions to seal are filed with the court and posted publicly to provide the community and others with notice that it has been filed. The Court then conducts a hearing regarding the petition. At this hearing, the court will do one of three things: grant the petition, deny the petition or take it under advisement and issue a decision at a later date.
How long does it take after the petition to seal is granted?
If a petition to seal is granted, the Commissioner of Probation removes the record or information contained thereon from the petitioner’s CORI. This process can take up to thirty (30) days from the time of the court order, but generally occurs within two weeks. If granted, when an individual applies for employment, housing, professional licensure, etc., he or she may represent that they have no criminal record or CORI.
Where a petition to expunge or certain requests to seal are granted, the Commissioner must also inform the Federal Bureau of Investigation (FBI) and the United States Department of Justice (USDJ) that the expunged or sealed record be removed from federal and/or national law enforcement databases. These federal or national records are created after police arrest and process a defendant by taking fingerprints and photographs and then upload this information from state to federal law enforcement databases.
To ensure that all applicable records are fully expunged or sealed, once a petition is granted, the Commissioner in Massachusetts must notify federal authorities.
Because of the complexities involved with filing petitions to expunge and/or seal criminal record information, the ever-changing laws on the topic, and the likely need for a court hearing, it is recommended that a petitioner hires an experienced criminal defense lawyer. If you have ever been arrested or charged with a crime in Massachusetts and believe you may be eligible to have records of the matter expunged or sealed, call the Law Office of John L. Calcagni III, Inc. for a free consultation.
Our firm and its lawyers have an established reputation and experience for providing criminal defense representation in the Commonwealth of Massachusetts, to include filing successful petitions to expunge and seal.
If you need to expunge a criminal record and need experienced Massachusetts Expungement Attorneys call (508) 213-9113 to schedule your free consultation with the Law Offices of John L. Calcagni III.