Record Sealing and Expungement
Criminal Record Sealing and Expungement in Massachusetts.
Navigating the legal landscape of record sealing and expungement in Massachusetts can be complex. This post aims to clarify the process, eligibility criteria, and the impact on individuals seeking to seal or expunge their criminal records.
What Happens if I Have my Record Sealed?
Massachusetts criminal records are known as "CORI" (Criminal Offender Record Information) reports. For information about CORI reports, what is on them, and who can access the information, go here. When you have your record sealed, it means that the particular case or offense will no longer be present on your CORI report. Essentially, it will be as if the record doesn't exist at all, and when someone conducts a background check on you, they will not see any evidence that you were ever charged with a crime.
It's important to note that there are a few exceptions to this. Some agencies, such as law enforcement and the court, may still have access to your sealed record if you are charged with another criminal offense. Additionally, firearms licensing authorities, adoption agencies, and background checks for school teachers may have limited access to your sealed record.
In summary, having your record sealed effectively removes any indication of the particular case or offense from your CORI report, making it invisible to most employers and individuals conducting background checks. However, certain agencies and circumstances may still allow access to your sealed record.
If I Have my Record Sealed do I Need to Tell an Employer or Other Agencies That I Have a Sealed Record?
If you have had your criminal record sealed, you are generally not required to disclose it to an employer or other agencies. The law permits you to truthfully answer "no" when asked if you have a criminal record, as your sealed records are effectively treated as if they do not exist. In the event that an employer or agency specifically inquires about your record, the response they will receive is typically a confirmation that there is no record on file. Therefore, you are not obligated to volunteer the information about your sealed record, unless specifically asked.
What is the Difference between “Sealing” and “Expungement”?
Sealing a Record: Sealing a criminal record in Massachusetts restricts the accessibility of the record to a very limited group. While the record still exists, its visibility is greatly diminished, making it inaccessible to most employers, landlords, and background checks.
Expungement of a Record: Expungement goes a step further by completely destroying the criminal record, making it as if the offense never occurred. This process removes the record from public access as well as government databases, ensuring it cannot impact future opportunities. Very few people will qualify for expungement.
When sealed, a record still exists and is maintained, opposed to being destroyed, but access to it is limited. As a practical matter for most people, the effect of sealing your criminal record will be almost the same as expunging it. This is good, because the requirements for expungement are much stricter than for sealing, and in practice very few people actually qualify for expungement. Expungement is when the physical records are destroyed and it is as if the charge never happened.
Do I Qualify for Expungement of My Massachusetts Criminal Record ?
The reality is that very few people will qualify for expungement of their record.
To be eligible for expungement, the conviction cannot be a crime that:
Resulted in death or serious bodily injury;
Was committed with the intent to cause death or serious bodily injury;
Was committed while armed with a dangerous weapon;
Was committed against an elderly or disabled person;
That is a sex offense that required registration as a Sex Offender;
Was operating under the influence of drugs or alcohol;
Was a gun or firearm offense;
Was violating a restraining, no contact or no harassment order;
Or was domestic violence.
Also, the charge must have occurred before your 21st birthday.
Furthermore, you must not have any other court appearances on your CORI except for motor vehicle offenses in which the penalty did not exceed $50, and you 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. These are VERY narrow exceptions.
Do I Qualify for Sealing My Massachusetts Criminal Record?
Sealing Convictions: Eligibility for sealing criminal convictions varies based on the nature of the conviction:
Misdemeanor convictions can be sealed 3 years after the conviction date or release from incarceration, whichever is later.
Felony convictions require a 7-year waiting period after the conviction or release from incarceration.
Sealing Non-Convictions: Charges that are not convictions (e.g., not guilty findings, dismissals, CWOF’s) may be sealed under certain conditions, often with no waiting period required. This requires a petition to the Court where the charge was resolved and a hearing before a judge. If the waiting period for a conviction of the same offense has run out, then a non-conviction can be sealed administratively without a hearing.
How do I Seal My Criminal Record in Massachusetts?
Sealing Records of Convictions: Time-based sealing of convictions can be done administratively, with a petition to the Office of the Commissioner of Probation. No hearing is required.
Sealing Records of Non-Convictions: If the waiting period for a conviction for the same offense has not run out (3 years for a misdemeanor, 7 years for a felony), a non-conviction requires a petition to the court where the charge was resolved. If you have several dismissals in different courts, it will require a petition to each of the courts. Petitions to seal are filed with the court and posted publicly in the courthouse 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 do I get a Charge Expunged?
1. The process begins with a Petition to the Commissioner of Probation, who assesses your eligibility. The Commissioner will inform you whether you qualify within 60 days.
2. The next step is “Notification and Objection”: The District Attorney’s office is notified and may object.
3. Upon receiving the DA’s objection or 65 days after sending notice to the DA, if no objection has been received, the Commissioner will send the petition to the court where the charge was prosecuted. 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. The public are excluded from court hearings related to expungement.
Impact of Sealing and Expungement
Sealed Records: Once sealed, a record is not visible in most background checks, allowing individuals to state they have no criminal record for most purposes. However, sealed records may still have limited accessibility under certain conditions. Once your record is sealed, your CORI will read “No record”.
Expunged Records: An expunged record is completely removed from all records and databases. Individuals can legally claim they have never been arrested or convicted of that crime. The expunged record may not be used against an individual for any purpose and that person may legally claim to have no arrests or convictions in his or her criminal history.
Expunged records are not public.
Does Expungement Restore Gun Rights in Massachusetts?
An expungement will restore firearms rights under both Massachusetts and federal law. The new expungement process requires the petitioner to meet certain strict guidelines, overcome an eligibility review by the Office of the Commissioner of Probation and be granted relief by the Court after a hearing.
Does Sealing Restore Gun Rights in Massachusetts?
No, gun licensing authorities will still see sealed charges.
How Long Before a Sealed Record is Removed From the System?
If a petition to seal is granted, the Commissioner of Probation removes the record or information from the petitioner’s CORI. This process can take up to thirty (30) days from the time of the court order, but generally occurs in about two weeks. If granted, when an individual applies for employment, housing, professional licensure, etc., he or she may legally represent that they have no criminal record or CORI.
Considerations
While sealing or expunging a record can significantly improve an individual's chances for employment, housing, and education, it is important to note that not all rights (such as firearm possession) may be restored through these processes. Certain crimes, particularly involving firearms or severe offenses, may have permanent implications regardless of sealing or expungement.
Do I need a Lawyer to get my Record Expunged or Sealed?
Due to the complexities and nuances of the process and the law, seeking the guidance of an experienced record sealing lawyer is critical to getting the best outcome, especially if you need to have results sooner rather than later. The process can be confusing, and an experienced record sealing lawyer can optimize your chances of success even in the most difficult and complicated circumstances.
Old mistakes shouldn’t have to follow you for the rest of your life. Let us help.
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This overview provides a foundational understanding of record sealing and expungement in Massachusetts. For those considering these options, it's essential to consult with a legal expert to explore your specific situation and the best course of action.
Contact Ernest Stone Today
Lead attorney Ernest Stone has almost three decades of experience in multiple criminal defense areas, including expunging and sealing criminal records. We can help you expunge or seal your old record and give you a new, fresh start.
If you or a loved one is facing criminal charges in Massachusetts, having a knowledgeable and experienced criminal defense attorney by your side is important. Contact H. Ernest Stone, Attorney PC, today for a free consultation. Being accused is traumatic. We understand. We’ll get you through the storm.
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