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BOSTON DEFENSE ATTORNEY SEALING CRIMINAL RECORDS

Massachusetts has one of the least available sealing statutes in the country and that is why it is much more rare that courts seal records here than many other states. Also, unlike many other states, there is no expungement statute in Massachusetts, so one can never get their record completely erased as if it never existed. Simply getting a record sealed might be helpful in some instances, but it is often rather inadequate since the record still exists, it just can’t be seen by numerous people or entities If one is convicted of something, one must wait 10 years after a felony or 5 years after a misdemeanor before that record can even be considered for sealing. Even then, it is not automatic and is up to discretion. Some have argued that we have a law here in Massachusetts that rarely qualifies someone to use it and this hurts the futures of people who may have made one simple mistake early in their lives. However, if your case was outright dismissed, then you might be ready right away to try to get it sealed. If one of these instances apply, then Attorney Elikann would be glad to try to help. He’s handled record sealing through the Office of the Commissioner of Probation and in all the courts across the Commonwealth of Massachusetts. If you need representation to help seal your criminal record, contact Attorney Peter Elikann for a 100 % private and confidential consultation at 617-742-9462. The following is a more detailed Primer on Sealing Criminal Records in Massachusetts that Attorney Elikann had published in a legal magazine:

A Primer on Sealing Criminal Records

By Peter Elikann (peter@elikann.com) Major aspects of the 2010 CORI (Criminal Offender Record Information) Reform Act overseeing the sealing of criminal records in Massachusetts went into effect on May 4, 2012. Most significant are the sections shortening the waiting period before one is eligible for sealing certain felonies and misdemeanors and greater limits on criminal record information given to employers and others. Sealing is almost never automatic. Essentially, there are three main ways to seal a record. 1. Some convictions or admissions can be sealed after a waiting period. 2.Cases that were dismissed without probation or resulted in a not guilty finding may be eligible for sealing. 3. A recorded offense that is no longer a crime may be sealed. Unlike many other states, Massachusetts law does not generally recognize expungement which is substantively different from sealing. Expungement would be preferable as it can essentially erase a criminal record, including police reports and arrest records, as if it never existed. On the other hand, simply getting a record sealed doesn’t erase a record; it merely keeps it confidential on some level. It is a good idea to request a recent CORI record of the defendant prior to attempting to seal records so that the eligibility for sealing is clear.

The following is an overview of the law.

Sealing after a waiting period

  • Under the new law, the waiting period to seal felonies is now lowered from 15 years to 10.
  • Under the new law, the waiting period to seal misdemeanors is now lessened from 10 to 5 years.
  • Unlike the old law, where the waiting period did not begin to toll until all court supervision ended including incarceration, parole or probation, under the new law the clock begins (a) for those incarcerated, on the day one is released from custody or (b) if there is no incarceration, on the date of disposition.
  • Any subsequent conviction causes the 5 or 10 year waiting period to begin tolling all over again. In other words, it must be 5 or 10 years from the date of the latest conviction in order to be eligible to get the entire rest of the record sealed.
  • The procedure is to submit a single page petition form, available on the web, to the Office of the Commissioner of Probation pursuant to M.G.L. c. 276, § 100A

Sealing after a non-conviction

  • In the case where there is no conviction, one must petition the court directly, but can do so immediately without any waiting period. This pertains to cases that resulted in an acquittal at trial, no probable cause, a dismissal or nolle prosequi. Under the new law, for the first time, this includes a case that was dismissed after a continuance without a finding. The exception is where a “no bill” has been returned by a Grand Jury and, in that case, sealing is mandatory.
  • In this instance, records may be sealed only after the court has made a specific, on the record finding that sealing is necessary to effectuate a compelling government interest. The defendant must show a specific harm. For example, in the case of Commonwealth v. John Doe, 420 Mass. 142, 648 N.E. 2d 1255 (1995) the Court refused to seal the record of a college student whose rape charges had been nolle prossed by the Commonwealth. The defendant there had argued in a general way that the stigma of such a charge could hurt him for future graduate school or employment opportunities. The court ruled that in the Doe case, “no more was shown than a general threat to reputation or privacy” and this vague risk of harm was too speculative.
  • The petitioner must file a specific petition form and a motion/affidavit form available from the court that must be posted publicly at the court. It is a good idea to also submit a memorandum. A judge may rule based solely on the paperwork, but more frequently the petitioner is afforded a hearing, pursuant to M.G.L. c. 276, § 100C

Simultaneous sealing after a waiting period and after a conviction

  • Occasionally you’ll find a offender’s record may have very old convictions or admissions that are eligible to be sealed because the required waiting period has already tolled. However, at the same time, the offender may have a very recent charge that was dismissed. Therefore, one can make efforts to seal the record on two tracks at the same time. The offender may file the petition to seal on all the convictions as long as the 5 or 10-year period has passed with no recent convictions or admission. Simultaneously, the offender can file a petition before the court to seal cases that resulted in no conviction or admission no matter how recent.

Sealing a record of an offense that is no longer a crime

  • If an offense that is on the defendant’s record has been decriminalized, this may also be sealed by submitting a single page petition form, available on the web, to the Office of the Commissioner of Probation pursuant to M.G.L. c. 276, § 100A. An obvious example would be those with a record for possession of marijuana. However, in that specific instance, since only possession of an ounce or less of marijuana has been decriminalized, one would have to supplement the petition with documentation of the weight in that case by way of a drug certification or police report.

Exception to sealing statute

  • A person convicted of a sex offense is eligible to have the record sealed after 15 years after the disposition including supervision or after any incarceration is completed (a) if they have no duty to register as a sex offender and (b) if they were never, at any time, classified as Level 2 or 3 sex offender.
  • Convictions for numerous offenses under M.G.L. c. 268 and 268A, concerning crimes against public justice (such as perjury, false reports, witness intimidation, disrupting court proceedings, escape from custody, resisting arrest), and unethical conduct concerning public officials and employees (such as various forms of corruption) can never be sealed. Additionally, certain firearms offenses, under Chapter 140, §§121-131H, are still never sealable.

Who has access?

  • Employers, landlords and professional licensing authorities especially concerning firearms will have access to CORI reports if they have signed authorization from the CORI subject.
  • Special classes of people are permitted access to CORI reports including non-convictions. These include those who run long-term care facilities over their employees and volunteers; home and community care for the elderly and disabled; and victim/witnesses. In certain child custody and visitation or domestic abuse and restraining order matters where safety is at stake there is even a right to look at sealed cases if a court order is obtained.
  • Almost any office involved in the best interests of children including the Department of Children and Families, Department of Social Services, school bus drivers, camps, early education programs, foster care, etc.
  • Municipalities may conduct criminal record checks in order to license particular designated positions and to assist their housing authorities in screening
  • Law enforcement agencies have an automatic and immediate right to all CORI records included sealed records.
  • Any private individual may make a written request to view the CORI of any other person concerning (a) felony convictions punishable by 5 years of imprisonment until 2 years after release from custody; (b) a misdemeanor until a year after return from incarceration; (c) any conviction that includes incarceration until any parole or probation is completed.\
  • If an individual is eligible to have a conviction sealed—10 years after a felony or 5 years after a misdemeanor– but does not take that action to seal, most employers still no longer have access to such records after that time period.

Record questions barred on initial employment applications

  • Under the so-called “ban the box” rule, an employer is blocked by law from asking a job applicant on an initial written employment application to check off whether they have any criminal record. The exception is when state or federal law prohibits a specific job from being filled by a convicted individual. For example, under federal law, banks are barred from hiring people convicted of certain offenses, so, therefore, may inquire about a criminal record right from the start.
  • After the initial application, employers do, eventually, have the right to inquire about the applicant’s criminal history such as during the job interview
  • The employer must give the applicant a copy of his or her criminal record before questioning that person about their criminal record. If a person is denied a position because of their criminal record, they must also be provided with that criminal record.

Correcting errors in ones CORI and also learning who accessed it

  • The Commonwealth will publish guidelines outlining the procedure to correct erroneous information in one’s CORI and may assist individuals in fixing inaccuracies.
  • Individuals have the right to a free audit every 90 days to view who may have looked at their CORI record and for what reason.

Complaint procedure

  • If an employer violates any CORI statute or regulation such as failing to provide the applicant with a CORI report after being denied employment because of it or prior to being interviewed about it, the new Criminal Record Review Board will investigate and hear complaints
  • An employer cannot be held liable for an employment decision based upon erroneous information learned in a CORI report within 90 days of receiving the report. However, the employer may be held liable for reliance on an erroneous criminal record report provided by a private record search company. Still, the employer is not completely insulated from any liability whatsoever. The federal Equal Employment Opportunity Commission continues to take the position that, at least in many employment contexts, an automatic ban on hiring those convicted of criminal offensesresults in unlawful employment discrimination.

Dissemination of non-convictions

  • Non convictions such as charges that resulted in acquittals or dismissals are not subject to dissemination except in the few instances where there is delineated statutory access to the non-conviction.
  • Pending cases may be viewed.
  • Continuances without a finding are to be treated as dismissals once they are dismissed, but not during the period pending that dismissal. Until the date of dismissal, a continuance without a finding is subject to be viewed.

Visibility of sealed records and non-convictions

  • Previously, notification was given that a sealed record existed even though the contents of that sealed record could not be viewed. Under the new law, it will, usually, not be revealed whether a sealed file exists.
  • Previously, until a record was sealed, non-convictions (dismissal, not guilty, nolle prosequi) would be visible in a search. Under the new law, non-convictions will not be revealed in searches.

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