Time-Based Expungement of Criminal Records - Correcting Youthful Indiscretions
This Legal Guide provides an explanation of time-based expungement, the requirements that must be met in order to obtain a time-based expungement, and the benefits that derived from an expungement.
How My Criminal Record Can Hurt MeCriminal record information record can be broadly defined as any and all information that the government has on a person as it relates to any criminal charges that person has faced. Such records include a list of any crimes charged, court dates, police reports that detail the factual allegations made, personal information such as birth date and address, case outcomes, conviction data and fingerprints. Much of this information is publicly available, even if the person was not ultimately convicted of any crime. Criminal record information can cause a person to be passed over for a job or a promotion, be denied a license, be rejected for a volunteer opportunity, can cause a lower credit score, and can be a source of embarrassment. All over something that happened in the past and should not offset an otherwise lifetime of exemplary living.
The Massachusetts Legislature passed laws in 2018 that would allow for persons meeting certain specific criteria to effectively erase or expunge criminal record information from their records, thereby eliminating the problems caused by having any criminal record.
What is Time-Based Expungement?The two main ways to mitigate the damage caused by a criminal record are 1) sealing and 2) expungement. I have discussed the topic of sealing in another Legal Guide and will not be covering sealing in this Guide. The key difference between sealing and expungement is that records that are sealed still continue to exist, albeit they are harder to see, whereas expungement removes the existence of those records so that there is nothing to see. Think of sealing as painting over graffiti, and expungement as sand blasting off the graffiti. EXPUNGEMENT IS THE MORE COMPLETE REMEDY AND IF YOU CAN GET A RECORD EXPUNGED RATHER THAN SEALED, GO FOR THE EXPUNGEMENT.
There are two ways a person can get criminal record information expunged: 1) via a time-based expungement ("TBE") petition and 2) via a reason-based expungement ("RBE") petition. I will discuss reason=based expungement is a separate Legal Guide. Time-based and Reason-based expungements have different requirements, processes and standards of proof, but have the same end result.
The most important distinction to be made between TBE and RBE is that whether or not you committed the crime(s) you are seeking to expunge is not as significant a factor to TBE, as it is to RBE. Reason-based expungement generally requires that the person seeking the expungement to prove that the criminal record was created because of an error or a fraud upon the court, whereas Time-based expungement requires that the petitioner meet certain statutorily-defined criteria.
It should be noted that TBE and RBE should both be assessed in any expungement situation: what may not qualify for RBE may qualify for TBE, and records that do not meet the requirements for TBE could possibly be expunged through an RBE petition.
What Are The Requirements For Time-Based Expungement?The statutory requirements for TBE are set forth in General Laws Chapter 276, s.100I. A petitioner must meet ALL of the requirements under 100I in order to qualify for a TBE.
These requirements are as follows:
* Petitioner was UNDER 21 YEARS OLD when the offenses were committed
* Not more than 2 “records” on the CORI (NOTE: multiple counts under one docket number count as a single “record")
* Petitioner has no other charges in Massachusetts, or in any other jurisdiction, other than minor motor vehicle violations where the fine does not exceed $50
* Petitioner is not the subject of any active criminal investigation
* If the charge is a Misdemeanor, all custody or probation ended at least 3 years prior to filing the expungement petition
* If the charge is a Felony, all custody or probation ended at least 7 years prior to filing the expungement petition
* Charges that are on the record are NOT crimes listed under 276, 100J. The list of crimes under 100J is long and specific, and the best way to determine if the charges on your record are eligible for a TBE is to discuss the matter with an attorney.
It is important to note that TBE is available for Juvenile, Youthful Offender and Adult charges, AND for situations where the Juvenile\Youthful Offender\Adult charge resulted in a non-conviction or a conviction.
Even if the petitioner meets all the 100I requirements, the judge reviewing the expungement petition must also find on the record that expunging the record satisfies the "best interests of justice" test.
How Can Expunging My Record Help Me?If your expungement petition is allowed, the first thing that will happen is that the Court will send the expungement order to 1) the court clerk’s office 2) the Office of the Commissioner of Probation (OCP) 3) the Department of Criminal Justice Information Systems (DCJIS) 4) and all criminal justice agencies such as the police, with instructions to expunge their records.
Once your record is expunged, you can legally and truthfully state that you have "No Record" if you are ever asked if you have a criminal record. Person's seeking to find out what was on your record will NOT be told you have an expunged record, they will be told that you have "no record".
Additionally pursuant to General Laws Ch. 276, 100T: Upon receipt of an order of expungement pursuant to section 100F, section 100G, section 100H or section 100K the commissioner of the department shall notify the Federal Bureau of Investigation (FBI) and the United States Department of Justice (DOJ) of said expungement and shall request said Federal Bureau of Investigation and the United States Department of Justice expunge the record. The request to the FBI to expunge its records of the Massachusetts records that were the subject of the expungement order should prevent a fingerprint check from revealing the existence of criminal records that were expunged.
I Want To See If I Can Get My Record Expunged - Next StepsIf you have a criminal record, you should contact an attorney who has experience in sealing and expungement to assess your situation and determine what is your best course of action.