My Case Was Dismissed, So I Have No Criminal Record, Right? (WRONG)

Posted about 4 years ago. Applies to Massachusetts, 12 helpful votes

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1

Difference between a conviction and a criminal record

Many people think that if the criminal charge is dismissed, they have no "criminal record". This is only partially true. While a dismissal means that a conviction has not occurred, the charge that was dismissed still appears on the person's Board of Probation record, also known as a BOP of CORI. To be sure, the CORI will reflect that the charge was dismissed, but often the damage will have been done merely the creation of a criminal record as potential employers or schools will not bother to inquire further into the charge and give the person a chance to explain. You do not need to be convicted to have a record of entries on your CORI.

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Arraignment = Creation of Criminal Record

Anytime you are arraigned on a criminal charge, the charge will appear on your CORI. If you have been arrested, you will be arraigned the next time you appear in court, usually later that same day, the very next day or the first weekday the court is open if you were arrested over the weekend. If you were not arrested, you will receive a summons in the mail to appear at a clerk-magistrate's hearing. A clerk's hearing is not an arraignment. The purpose of a clerk's hearing is to determine if there is probable cause to issue a criminal complaint and to schedule an arraignment. A clerk's hearing is an excellent opportunity to resolve a criminal case and avoid ever being arraigned.

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What to do if you have a clerk's hearing scheduled

Do not fail to appear at the clerk's hearing. When the defendant fails to appear at a clerk's hearing, the criminal complaint will issue and the defendant will receive a summons to appear at an arraignment. If you have a clerk's hearing scheduled, hire an attorney to go to the clerk's hearing with you to prevent the complaint from issuing, either by negotiating an amicable resolution or by convincing the clerk that probable cause does not exist to issue the complaint.

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I was arraigned, and the charges were dismissed.

Sometimes a person will show up at arraignment, be arraigned, and work out a dismissal with the prosecutor in exchange for payment of court costs or restitution or the performance of community service. In this situation, it would have been optimal to have worked out the deal before arraignment, although this is not always possible if the prosecutor does not agree to dismiss prior to arraignment. The chances of obtaining this result usually increases when you have an attorney representing you. If you were arraigned, the charge will appear on your record, but you may petition the court to seal your record. Note, however, that a a judge has discretion to deny a petition to seal a dismissed case and the defendant has a greater burden to carry to convince a judge to seal his record than to convince a prosecutor to dismiss before arraignment. Petitioning to seal usually done as a last resort, and the better course of action is to prevent the charge from appearing in the first place.

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Conclusion

Just because a criminal charge was dismissed does not mean that it will not come back to haunt you. That dismissed shoplifting charge from your early 20's may prevent you from coaching your child's sport's team many years later, or cause you to be passed over by a potential employer is favor of someone with a spotless record. Every arraignment creates an entry on the criminal record, but there are opportunities to avoid arraignment. If you have a clerk's hearing or an arraignment scheduled in the future, consult with an experienced criminal defense attorney immediately to determine your best course of action and your option to minimize the impact of the criminal charges.

Additional Resources

The Law Office of Dominic L. Pang

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