Expungement Eligibility and an Important Win

Too frequently legislation is passed that is simply worthless, advanced to solely demonstrate the politicians' obsequious need to show they are doing something about the issue du jour. However, in 2018, the Massachusetts legislature enacted St. 2018, Ch. 69, § 195 which included the basic provisions of expungement. As usual this legislation had to be revised soon thereafter to address defects, and this was done in 2020 by St. 2020, Ch. 253, § 98. The expungement provisions may be found in M.G.L. Ch. 276, § 100 (e-u). Of interest are the two most useful types of expungement: time based and non-time based. I am glad to say that this is legislation can, in certain instances, really be helpful to individuals seeking to eliminate criminal charges that may be impacting them.

Time based expungement addresses the notion that young people have poor decision making skills and ought not be saddled for life with the concomitant convictions that sometimes follow. Oddly, the official expungement website on the Commonwealth's government page fails to note the most important criterion: the offense must have occurred before the individual turned 21 years old. The list of other factors are as follows:

1. the individual may have no more than 2 records (but multiple offenses arising out of the same incident are considered a single offense);

2. the offense didn't result in death or serious bodily injury nor was the offense committed with the intent to cause death or serious bodily injury;

3. the offense wasn't committed while armed with or carrying a dangerous weapon.

4. the offense wasn't committed against an elderly or disabled person;

5. the offense isn't a sex offense, a sex offense involving a child, or sexually violent offense;

6. the offense isn't Operating Under the Influence;

7. the offense isn't a firearms violation or a violation for illegal sale of a firearm;

8. the offense isn't a violation of any restraining or harassment prevention orders;

9. the offense isn't an assault or assault and battery on a household member;

10. the offense isn't a felony violation of Ch. 265.

If the offense meets all these criteria, a person can request expungement three years after completing their sentence, or seven years after if the offense is a felony. Unfortunately, the list of exceptions consumes most of the convictions that I see, but once in awhile I find a case that can be expunged.

The other type of expungement is non-time based, and has no age or time restrictions. M.G.L. Ch. 276, § 100K provides that expungement should occur upon a showing by clear and convincing evidence of one or more of the following:

1. false identification of the petitioner or the unauthorized use or theft of the petitioner's identity;

2. an offense at the time of the creation of the record which at the time of expungement is no longer a crime, except in cases where the elements of the original criminal offense continue to be a crime under a different designation;

3. demonstrable errors by law enforcement;

4. demonstrable errors by civilian or expert witnesses;

5. demonstrable errors by court employees; or

6. demonstrable fraud perpetrated upon the court.

The Supreme Judicial Court decision of Commonwealth v. K.W., 490 Mass. 619 (2022) governs the issues presented when one petitions for expungement on this provision. A petition for expungement satisfying one of the six eligibility categories listed in section 100K “are entitled to a strong presumption in favor of expungement, and petitions for expungement in such cases may be denied only if a significant countervailing concern is raised in opposition to the petition.” K.W., 490 Mass. at 620.  The Supreme Judicial Court distinguished the legal standard for expungement from the legal standard for sealing of criminal records.  For example, the “good cause” showing required for sealing records, as detailed in Commonwealth v. Pon, 469 Mass. 296, 316-21 (2014), does not apply to expungement petitions.  Specifically, the Court held that unlike petitioners “seeking to seal their records, whose criminal records may still be of some value to society, petitioners who clear the high bar of G.L. c. 276, § 100K(a), need not articulate the particular disadvantages they might confront as a result of their records remaining accessible to those who have access to sealed records.”  K.W., 490 Mass. at 632.

Recently, I succeeded in getting a court to expunge a charge which had been dismissed on the grounds that there was insufficient evidence presented to demonstrate probable cause to issue a criminal complaint. This, I argued, amounted to an "error by court employees" for using the complaint and possibly an "error by law enforcement" for applyin for the complaint. The Judge in that instance agreed and expunged the offense. The possibility of having offenses expunged when there was no probable cause to bring the charge seems sensible, but until recently was not possible. Whether the same approach applies to indictments issued following a grand jury's true bill upon insufficient evidence remains to be seen but perhaps this could be arguably an error by law enforcement (the prosecutor's office) as well.

While state law is clear that an expunged offense may not be considered for many purposes, such as employment, it is not yet clear whether the underlying facts may be considered in firearm licensing determinations.

If you are interested in seeing if I can help you expunge a criminal offense, please contact me through my office.