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  • Writer's pictureAttorney Neil Tassel

Expungement (sort of) alive and well again in Massachusetts

Updated: Nov 17, 2023

Historically, in Massachusetts few options were available to those convicted of crimes trying to remove an offense from their records. This is distinct from sealing which is generally much less useful in eliminating the problems caused by the charges. The rare examples of expungement involved circumstances of fraud or mistake by the courts, such as a complaint being filed against an incorrect party when someone provided another party's identification. In 2018 the legislature enacted M.G.L Ch. 276 §§ 100E-100U which expanded, in limited circumstances, available options for expungement.

In two general ways, the new law allows expungement. First, if conduct was charged that is no longer criminal then expungement is available or if errors by a court or law enforcement caused a person to be charged with a crime. The common example is possession of marijuana. Second, so called "time based" expungement allows for removal of records pertaining to charges after a fixed period of time; three years for misdemeanors and seven years for felonies.

Tremendous confusion exists about time based expungement. There are wide exemptions to eligibility that largely undermine the statute's usefulness. First, time based expungement is only available for offenses that occur prior to the applicant's 21st birthday. Second, the applicant may only have two entries on their record. This refers to any criminal charge, not just a conviction or admission. Lastly, many offenses are not eligible for expungement even if the other criteria are met. Notable excluded offenses include operation under the influence of alcohol, offenses involving a dangerous weapon, and felonies against the person.

I receive many inquiries about expungement, often by people who have been left unable to obtain firearm licensing due to charges. A conviction for many offenses leaves one ineligible to possess a firearm pursuant to federal law and similarly disqualified to obtain a license to possess one in the Commonwealth. Of the many calls I've received only a few have been actually eligible; the caller either has more than two entries on their record, has ineligible offenses, or they were older than 20 years of age at the time of the offense.

One such case was recently decided in favor of expungement. The client, a resident of another state, was denied by the National Instant Check System when purchasing a firearm in his home state. Oddly, the case referenced in the NICS rejection did not contain a disqualifying offense as it was not a conviction. The offenses, including possession of marijuana, were continued without a finding and occured prior to his 21st birthday. My investigation revealed that the the clerk's office had made a mistake and left one of the offenses "open" and in default which can cause a NICS rejection due technically to the person being a fugitive.

I filed a motion to fix the error and to expunge the whole case given the decriminalization of marijuana and time based eligibility. Immediately the Court removed the default and recently all the charges were expunged. For the first time since he was a teenager he has no criminal record.

Another case that I am working on may lead to more expungement possibilities. A judge recently dismissed two interrelated cases on the grounds that there was insufficient evidence to issue either complaint against my client due to evidence contained in the police report that showed my client did not violate the law at issue. I believe that the error of issuing the complaint when there was no probable cause to issue the complaints may support expungement of both matters.

I'm happy to discuss expungement options with anyone who thinks they meet the extant criteria.

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