I was charged with DUI in Mass. in July 2012 but am Conn. resident with Conn. license. The officer was found to lack probable cause, the stop was ruled illegal, the motion to suppress the stop was allowed, and the case was unconditionally dismissed with prejudice (it cannot be later refiled).
As the stop was found to be illegal, would I have any avenue to expunge record of the arrest from my CORI and my RMV record? I think RMV should not retain record of a charge that did not result in a conviction or even admission of sufficient facts. Also, RMV has a record of refusal. Would being asked to take the test to begin with also be "fruit of the poison tree"?
Given this, if expungement is not available, comments about sealing are welcome. I have no convictions or other pending cases anywhere.
Expungement is not available, as this remedy is available usually in cases where the government intended to charge person A but mistakenly charged person B instead. The CORI is sealable pursuant to a sealing petition filed under GL ch. 276, s. 100C, which is a discretionary type sealing petition where the judge hearing the petition has discretion to deny the seal if he/she feels you have not met the tests for sealing. There is no waiting period to seal under 100C.
Be aware that the fact that the case was dismissed due to a successful motion to suppress will not help your sealing effort for a couple of reasons. First, when evidence is suppressed, that means that it cannot be used against you in a criminal trial, and a sealing petition is a civil action. When a judge considers a sealing petition, he will look at the facts alleged in the police report, even if the evidence was the subject of a successful motion to suppress. Second, many judges will believe that the facts alleged in the police report are true,or at least mostly true, and consequently will think that the reason you got the dismissal is not because you didn't do the crime, but because the government couldn't get enough evidence to use at trial against you. There is express language one of the leading cases on sealing that supports this negative perspective, indicating that a case that was dismissed because the person didn't commit the crime is a more compelling case for sealing than one that was dismissed because the prosecution simply couldn't prove its case, say for example because a necessary witness refused to testify. The fact that the case was dismissed with prejudice (an unusual type of dismissal, usually resulting from an egregious action on the part of the police or the DA's office) would likely help your sealing effort, however.
The reach of a 100C sealing does not extend to the RMV database, and the breath test refusal itself will continue to remain in the RMV database even if a 100C petition to seal your CORI is allowed. It does not matter that the breath test was fruit of an illegal stop. Note also that the record of your arrest is also contained in the FBI arrest database (aka the Interstate Identification Index or Triple I) and a successful seal under 100C will not cause the arrest to be removed from the Triple I.
Your chances of success in a 100C sealing petition increase when you retain an attorney with significant experience and success sealing criminal records.
Best of luck,
Dominic Pang (617-538-1127)
Your record would be difficult to expunge, as the only reasons that I am aware of for expungement are administrative (for instance, the charge was on the wrong person's record). You can, however, petition to have the record sealed. In that case, and especially applicable for you where the alleged incident happened in another state, the record would be sealed and the only entities that would be able to see that you were ever charged are law enforcement organizations. The probation file would exist, however, with a * next to your name (indicating that there was something on the record, but that it had been sealed.) As to the RMV consequences, you can go to a hearing officer and ask that it be reviewed. In order to be successful, you may need court records (the findings/order of the judge, or a transcript of the proceedings that contains the judge's findings orally.
Generally, regarding the refusal of the BT: If you refused, you refused. There is an "implied consent" law in MA that says by driving in MA you are consenting to a BT. Refusal of it, regardless of the grounds (you couldn't "know" that the officer had no probable cause at the time?), is still a refusal. Again, you can challenge, as you indicated, if you can prove that the court said the officer had no right to stop you. If the judge specifically said that the officer had no probable cause, you should have a very good chance of success. Further, this is well beyond the time allowed for an appeal, so you would have to have some special circumstances to allow this late action.
However, many people have successfully argued that the license should be restored without the 6 months wait because of the lack of probable cause to stop in the first place. So, the refusal remains on the record without the consequence associated with it.
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