What is the Process to Seal a Misdemeanor?
One common questions many have after having been charged with a criminal case is how can I expunge it from my record. In Massachusetts, the law does not allow expungements, but does allow individuals to Seal their record which accomplishes the same objective–preventing employers from seeing any entry if they run a Massachusetts CORI.
What are the Steps to Seal your record?
New criminal justice reform in Massachusetts means that many people can put their past behind them and “seal” a criminal record for a fresh start. A criminal case is never too old or too minor to trigger barriers to employment, housing, and other opportunities. The availability of sealing is a vital part of the system for administration of criminal justice given the nature of and far-reaching consequences of a criminal history.
What is the Waiting Period to seal a Misdemeanor?
The waiting period to seal a misdemeanor is only three years since the legislature passed this reform. Any person having a record of criminal court appearances and dispositions in Massachusetts on file with the office of the commissioner of probation may, on a form furnished by the commissioner and signed under the penalties of perjury, request that the commissioner seal the file.
The clock to seal begins at release from incarceration or custody, or from the end of any probation period, not at the time of sentencing. If you were found “not guilty,” your case was dismissed, or the district attorney dropped the case, the three-year waiting period runs from the date of this “disposition.”
The process for sealing cases in court is free, in order to seal your cases you need to file documents in the same court that handled your criminal case. First, you will need a petition to seal form that you can get online. Then you will need a motion to seal, which is usually a two step process. Once you submit a petition to seal to the Office of the Commissioner of Probation, who will send a copy of the petition to the local district attorney. If the district attorney objects, the court holds a hearing within 21 days after receiving notice from the commissioner of the objection.
If there is no objection, the court can allow the petition on the papers. A judge has to make findings of fact to determine whether sealing the record is in the best interest of justice. The sealing statute does not define this phrase explicitly, but the legal standard is based on “good cause.” A judge will consider relevant factors in sealing cases. These factors include the time elapsed between the arrest and the petition, disadvantages if the record is left open, the petitioner’s age at the time of the offense, seriousness of the offense, stigma related to the offense, treatment or rehabilitation efforts, community contributions, and “the nature of and reasons for the particular disposition.”
The statute that governs sealing is Mass. Gen. Laws Ann. ch. 276, § 100A.
Any person having a record of criminal court appearances and dispositions in the commonwealth on file with the office of the commissioner of probation may, on a form furnished by the commissioner and signed under the penalties of perjury, request that the commissioner seal the file. The commissioner shall comply with the request provided that: (1) the person’s court appearance and court disposition records, including any period of incarceration or custody for any misdemeanor record to be sealed occurred not less than 3 years before the request;
(2) the person’s court appearance and court disposition records, including any period of incarceration or custody for any felony record to be sealed occurred not less than 7 years before the request;
(3) the person had not been found guilty of any criminal offense within the commonwealth in the case of a misdemeanor, 3 years before the request, and in the case of a felony, 7 years before request, except motor vehicle offenses in which the penalty does not exceed a fine of $50;
(4) the form includes a statement by the petitioner that he has not been convicted of any criminal offense in any other state, United States possession or in a court of federal jurisdiction, except such motor vehicle offenses, as aforesaid, and has not been imprisoned in any state or county in the case of a misdemeanor, within the preceding 3 years, and in the case of a felony, within the preceding 7 years; and;
(5) the person’s record does not include convictions of offenses other than those to which this section applies. This section shall apply to court appearances and dispositions of all offenses; provided, however, that this section shall not apply in case of convictions for violations of sections 121 to 131H, inclusive, of chapter 140 or for violations of chapter 268 or chapter 268A, except for convictions for resisting arrest.
In carrying out the provisions of this section, notwithstanding any laws to the contrary:
- Any recorded offense which was a felony when committed and has since become a misdemeanor shall be treated as a misdemeanor.
- Any recorded offense which is no longer a crime shall be eligible for sealing forthwith, except in cases where the elements of the offense continue to be a crime under a different designation.
- In determining the period for eligibility, any subsequently recorded offenses for which the dispositions are “not guilty”, “dismissed for want of prosecution”, “dismissed at request of complainant”, “nol prossed”, or “no bill” shall not be held to interrupt the running of the required period for eligibility.
- If it cannot be ascertained that a recorded offense was a felony when committed said offense shall be treated as a misdemeanor.
- Any violation of section 7 of chapter 209Aor section 9 of chapter 258Eshall be treated as a felony.
- Sex offenses, as defined in section 178C of chapter 6, shall not be eligible for sealing for 15 years following their disposition, including termination of supervision, probation or any period of incarceration, or for so long as the offender is under a duty to register in the commonwealth or in any other state where the offender resides or would be under such a duty if residing in the commonwealth, whichever is longer; provided, however, that any sex offender who has at any time been classified as a level 2 or level 3 sex offender, pursuant to section 178K of chapter 6, shall not be eligible for sealing of sex offenses.
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