The Problem With Sealing When Probation Has Been Imposed
Under the current wording of General Laws ch. 276, s. 100C, a dismissal that has resulted after a period of probation has been served is ineligible for sealing. This leaves the person who was given a continuation without a finding (CWOF) where the charge was dismissed following successful completion a probation unable to seal the charge that was CWOF'ed under 100C. The only alternative is to seal through s. 100A, which requires a 10 (for misdemeanors) or 15 (for felonies) year waiting period
While the prohibition on sealing under 100C when there was probation imposed will go away when the amendments to 100C go into effect on May 4, 2012, persons who have had a CWOF that resulted in a dismissal currently cannot petition to seal their CORI until May 4, 2012.
First-time Drug Offenses Can Be Sealed, Even After a Period of Probation
There is an exception to the general prohibition against sealing when a periods of probation was imposed. This exception to the general rule is for first offense drug possession charges. In order to seal a drug charge under ch. 94C, s.34, the following 4 conditions must be met:
1) The person has not previously been convicted of a violation of any provision of ch. 94C or other provision of prior law relative to narcotic drugs or harmful drugs as defined in said prior law, or convicted of a felony under the laws of any state or of the United States relating to such drugs;
2) the person has had his case continued without a finding to a certain date, or has been convicted and placed on probation;
3) the person has not violated any of the conditions of said continuance or said probation, and;
4) the period of probation has ended.
No Waiting Period, No Prohibition on Sealing Even After Probation
If the above 4 conditions have been met, the person can IMMEDIATELY petition the court to seal the first-offense drug possession charge. Unlike other criminal charges, the fact that probation was imposed is NOT a bar to an immediate petition to seal. The person need not wait 10 or 15 years to seal. Finally, even first-offense drug convictions (as opposed to dismissals) can be sealed.
Note, however, that a petition to seal a first-offense drug charge must be filed with the court the charge originated from and the judge who hears the petition has discretion to deny the petition if the judge feels that the petitioner has met the test for sealing, as defined by case law. Sealing is not automatic.
If the First Offense Drug Crime Was For Posession of Marijuana or a Class E Drug
For any person who is convicted for the first time for the possession of marijuana or a class E drug and placed on probation, upon successful completion of said probation, the case SHALL be dismissed and records SHALL be sealed. This mandatory sealing does require a petition to the court where the charges originated, but a judge does not have discretion to deny this type of sealing request.
What To Do If You Have a First-Offense Drug Charge With Probation
If you have a first-offense drug charge that may qualify for sealing, contact an attorney with experience in sealing criminal records to determine your best course of action. The mechanics for sealing a first-offense drug charge are the same as for sealing any other crime under ch. 276, s.100C, and the petitioner stands a better chance of success when aided by an attorney who understands the process, relevant case law and substantive legal tests that the court considers.
Having any criminal charges on your CORI can seriously impact your educational and job prospects. If you can have a charge sealed from your CORI, it usually makes sense to do so. After a record has been sealed, when someone tries to see your record, they are told that you have no record; they are NOT told that you have a record that has been sealed.