Continued without a finding (CWOF) in Massachusetts

M.G.L. c. 278 § 18 lets a defendant in the District Court, the Boston Municipal Court, or the Juvenile Court ask that a guilty finding not be entered. Instead, the case is continued without a finding to a specific date and then dismissed, as long as you comply with the conditions the court sets.

The court's probation rules describe it the same way. A CWOF follows a guilty plea or an admission to sufficient facts, and the case is continued to a date certain without the formal entry of a guilty finding. Meeting the conditions leads to dismissal. Violating them can lead to a guilty finding and a sentence.

A CWOF is available unless another law prohibits it. For example, an OUI can be continued without a finding only as a 24D disposition. A charge of leaving the scene after causing personal injury cannot be continued without a finding at all.

A CWOF follows either a guilty plea or an admission to sufficient facts. With an admission, you do not say the word guilty, but you agree that the prosecution's evidence would be enough for a finding of guilt. The law treats this admission as a tender of a guilty plea. The judge goes through a plea colloquy with you, and you sign a tender of plea or admission and waiver of rights form.

You do not need the prosecutor's agreement to ask for a CWOF. If the Commonwealth will not agree, you can tender your admission with your own request for a CWOF. The judge cannot impose anything harsher than the agreed recommendation or your request without first giving you the chance to withdraw. State court guidance calls this a defendant-capped plea.

Before accepting an admission, the judge must also warn you that it may lead to deportation, exclusion from the United States, or denial of naturalization if you are not a citizen.

The judge sets the length of the continuance and its conditions. Conditions can be set in an order of probation under M.G.L. c. 276 § 87, which lets the court impose the terms it considers proper.

If you meet the conditions through the end date, the case is dismissed. If probation claims you violated a condition, the court holds a violation hearing. The judge can then dismiss the case anyway, continue the CWOF with or without changes, extend it, or end the CWOF, enter a guilty finding, and impose a sentence.

That last option is the risk to understand. Because you already admitted sufficient facts, a violation can turn a CWOF into a conviction without a trial.

A CWOF is not a guilty finding under M.G.L. c. 278 § 18, and a completed CWOF ends in dismissal. But the court appearance and its disposition stay on your record with the Office of the Commissioner of Probation. Dismissal does not erase the record by itself.

You can ask to seal it. Sealing through the Commissioner of Probation under M.G.L. c. 276 § 100A applies to the court appearances and dispositions of all offenses, with a few exceptions, after 3 years for a misdemeanor or 7 years for a felony. A court petition under § 100C covers dismissals and nolle prosequi, but state guidance describes that path as applying to dismissals entered without probation, so it may not fit every CWOF.

In an OUI case, M.G.L. c. 90 § 24 bars filing or continuing the case without a finding except as a disposition under § 24D. A 24D disposition means probation for up to 2 years, a driver alcohol education program, and a license suspension of 45 to 90 days, or 210 days if you were under 21.

It is still a prior offense. For purposes of the OUI law, § 24 treats an admission to sufficient facts as a conviction, whether or not you were placed on probation. Being assigned to an alcohol education program counts too. Massachusetts counts these priors for life, so a later OUI can be charged as a second or subsequent offense.

The $250 head injury assessment and the $50 victims of drunk driving assessment apply to a CWOF just as they do to a conviction. An OUI record can generally be sealed, but it can never be expunged under the time-based expungement law.

Federal immigration law defines conviction differently than Massachusetts does. Under 8 U.S.C. § 1101(a)(48)(A), an admission of sufficient facts to warrant a finding of guilt, combined with any punishment, penalty, or restraint on liberty ordered by the judge, counts as a conviction even though no guilty finding was entered.

That means a CWOF with probation can carry the same immigration consequences as a guilty plea. If you are not a U.S. citizen, talk to an immigration lawyer before you admit to sufficient facts. If a judge failed to give the required immigration warning, M.G.L. c. 278 § 29D may allow you to withdraw the admission later.

Whether a CWOF makes sense depends on the strength of the evidence, your record, your job, your license, and your immigration status. Sometimes a motion to dismiss or a trial is the better course. We look at the whole picture before you admit anything.

Lisa DiLibero, Esq., handles the firm's Massachusetts matters. If you have been offered a CWOF, call 401-621-9700 before your next court date.