Michael Thaler, Esq
Will I Have A Record Forever? AKA The Distinction Between “Sealing” And “Expunging”.
After you are arraigned, any criminal charge will appear on your court activity record. This is viewable by the police and, in certain circumstances, by potential employers. However, after a case is resolved, you are eligible to have most cases sealed such that it is no longer viewable by any party except criminal justice agencies. The procedure under which you may request to seal a case is outlined in M.G.L. c. 276, §§ 100A-100C.
The amount of time you must wait to have a case sealed depends on the circumstances of your case. As of October 14, 2018, the amount of time in which an adult must wait before requesting that the Commissioner of Probation seal a record is reduced from ten to seven years for a felony (fifteen years for certain sex offense felonies) and from five to three years for a misdemeanor (including for a conviction for resisting arrest). However, if your case has resolved with the entering of a nolle prosequi or a dismissal, then the court can seal the case upon the filing of the petition to seal if “it appears to the court that substantial justice would best be served” by said sealing. M.G.L. c. 276, § 100C. Factors the court may consider when deciding whether to seal your record include the following: 1) the particular disadvantages caused by the availability of the criminal record; 2) evidence of rehabilitation suggesting you could overcome these disadvantages if the record were sealed; 3) any other evidence that sealing would help you overcome the identified disadvantages; 4) relevant circumstances to you at the time of the offense that suggest a likelihood of recidivism (committing another offense) or success; 5) the amount of time passed since the offense and the conclusion of the criminal case; and 6) the nature of and reasons for the particular disposition of the criminal case. Along with the petition to seal, you can include any documents that you believe support your reason for sealing the record in your case.
As of October 14, 2018, there is also a protocol for certain cases in specific circumstances to be expunged. Under M.G.L. c. 276, §§ 100E-100U. Expungement is defined as “the permanent erasure or destruction of a record so that the record is no longer accessible to, or maintained by the court, any criminal justice agencies or any other state agency, municipal agency or county agency.” If a case is eligible for expungement, a judge will then determine whether to expunge the record in the interests of justice. To qualify for expungement, the petitioner will have to meet the following criteria: the offense for which the record was created must have occurred prior to the petitioner’s twenty-first birthday, the offense must be one that qualifies for expungement, the offense must have occurred not less than 7 years before the date on which the petition was filed in the case of a felony and three years in the case of a misdemeanor, and the petitioner must not have any other criminal or juvenile court appearances or dispositions on file (other than motor vehicle offenses in which the penalty does not exceed a fine of $50). Further, a record may be expunged if it was created as a result of fraud or specifically defined errors, such as in the case of identity fraud.
In most instances, you can seal a charge by yourself as long as you follow the process outlined by the statute and followed by the particular court in which your case was handled. As is the case with any matter involving the court and a judge, it can be helpful to hire a lawyer to represent you. It is very common for people to seek to seal or expunge a charge without following the proper procedure, which can be a big waste of time. A lawyer can provide the court with documentation in your favor and argue to the court about why your petition should be allowed. Further, a lawyer can advise you on whether it makes sense to seek to seal a particular charge versus seeking expungement. You should speak to a lawyer and make sure you make the right decision for your particular situation.