Massachusetts criminal defense
Sealing a criminal record in Massachusetts
In Massachusetts, you can generally ask the Commissioner of Probation to seal a conviction 3 years after a misdemeanor or 7 years after a felony, counting from the conviction or the end of any jail or prison time, whichever is later. Dismissed cases and cases the prosecutor dropped can be sealed by a judge under a separate law. Once a record is sealed, you can generally answer “no record” on applications for jobs, housing, and professional licenses.
What sealing does
Sealing does not destroy the record. It closes the record off from most people who would otherwise see it. After a record is sealed under M.G.L. c. 276 § 100A, the Commissioner of Probation tells most people who ask that no record exists, and the clerk and probation office in the court where the case was heard seal their files too.
- Applications for employment, housing, and occupational or professional licenses must tell you that you may answer “no record” about a sealed record.
- A sealed record cannot be used to disqualify you from public employment or an appointment with the state, a city, or a town.
- A sealed record generally cannot be used as evidence in court or before boards and commissions, with limited exceptions.
- The state notifies the FBI and the U.S. Department of Justice and asks them to seal the record too.
- In a negligence claim, an employer or landlord is presumed not to know about a sealed record.
Sealing a conviction: the waiting periods
Conviction sealing is handled by the Office of the Commissioner of Probation under § 100A. The Legislature shortened the waiting periods in 2018, from 5 years to 3 for misdemeanors and from 10 years to 7 for felonies (St. 2018, c. 69, §§ 186 and 187).
| Record | Waiting period |
|---|---|
| Misdemeanor | 3 years after the conviction or the end of any incarceration or custody, whichever is later |
| Felony | 7 years after the conviction or the end of any incarceration or custody, whichever is later |
| Violation of an abuse prevention order (c. 209A § 7) or a harassment prevention order (c. 258E § 9) | Treated as a felony: 7 years |
| Sex offense as defined in M.G.L. c. 6 § 178C | 15 years after the disposition and the end of any supervision or incarceration, or as long as you must register, whichever is longer. Never, if you were ever classified as a level 2 or level 3 sex offender |
Other conditions for sealing a conviction
During the waiting period you cannot have any new guilty findings in Massachusetts, or any convictions or imprisonment in another state or in federal court. Motor vehicle offenses with a fine of $50 or less do not count. Later cases that ended in not guilty, a nolle prosequi, a no bill, or certain dismissals do not interrupt the waiting period.
A few kinds of convictions cannot be sealed this way: firearm offenses under M.G.L. c. 140 §§ 121 to 131H and offenses under chapters 268 and 268A, except resisting arrest. Having one of those convictions on your record can block sealing under § 100A.
An old felony that is now a misdemeanor is treated as a misdemeanor. A conviction for something that is no longer a crime can be sealed right away. An OUI is not on the excluded list, so it can generally be sealed once the waiting period runs.
Sealing a dismissal or nolle prosequi
If your case ended in a not guilty verdict, a no bill from a grand jury, or a finding of no probable cause, the Commissioner of Probation seals it automatically under M.G.L. c. 276 § 100C. You can ask in writing that it not be sealed.
If your case was dismissed or the prosecutor entered a nolle prosequi, you can ask the court where the case started to seal it. The statute sets no waiting period. The judge seals the record if it appears that sealing serves substantial justice.
The court may consider these things:
- The particular disadvantages the open record causes you
- Evidence of rehabilitation that suggests you could overcome those disadvantages if the record were sealed
- Any other evidence that sealing would help you
- Your circumstances when the offense happened
- How much time has passed since the offense and the end of the case
- The nature of and reasons for the disposition
What about a CWOF that was dismissed?
State guidance describes the court petition under § 100C as covering dismissals entered without probation. A case continued without a finding and later dismissed may need to use the § 100A path through the Commissioner of Probation instead. We check which path fits before anything is filed.
How to apply
Where you file depends on how the case ended.
- Conviction records: complete the Petition to Seal conviction records form and file it with the Massachusetts Probation Service, Office of the Commissioner of Probation.
- Dismissals and nolle prosequi in the District Court: file the Petition to Seal Criminal Records for Nolle Prosequi or Dismissal at the clerk's office of the court where the case started.
- Dismissals and nolle prosequi in the Boston Municipal Court: file at the BMC division where you live. If you no longer live in BMC territory, file where your most recent eligible record is from.
- There is no fee. Including a copy of your criminal record and a certified copy of the court docket is recommended but not required.
The court process for dismissals
In the District Court, a judge first reviews the petition. If the requirements are not met, it can be denied without a hearing. If they are met, you will get notice of a hearing by mail, and the notice is posted at the court for at least 7 days.
At the hearing you explain why there is good cause to seal the record and why it outweighs the public's general right of access. You can have a lawyer at the hearing. If the judge denies the petition, you can appeal to the Massachusetts Appeals Court.
What sealing does not do
Sealing has limits that matter.
- It does not destroy the record. Law enforcement agencies, courts, and appointing authorities can still learn of it.
- It can be used in sentencing if you are convicted of a new crime later.
- In custody, visitation, abuse prevention, and certain other family and juvenile proceedings, a party can ask the judge to admit a sealed record that bears on a child's custody, on abuse, or on someone's safety. The judge reviews it privately first.
- If you are later found guilty of a new offense, a record sealed under § 100C becomes available to the probation officer. It also becomes available to the court, except for a not guilty, a no bill, or a no probable cause finding.
Expungement: a narrower option
Expungement means the permanent erasure or destruction of a record so that courts and government agencies no longer have it. Massachusetts added expungement in 2018 (St. 2018, c. 69, § 195), at M.G.L. c. 276 §§ 100E to 100U.
Time-based expungement is limited. Every offense on the petition must have happened before your 21st birthday, and the same 3-year or 7-year periods must have passed. You can have no more than 2 records, with offenses from one incident counted as one, and no other court records in Massachusetts or elsewhere apart from minor motor vehicle fines.
Many offenses can never be expunged this way. They include OUI, offenses resulting in death or serious bodily injury, offenses committed while armed with a dangerous weapon, sex offenses, protective order violations, and felonies under M.G.L. c. 265. The district attorney gets notice and can object, and the court decides in the interests of justice.
A separate provision, § 100K, lets a court expunge a record created by false identification or identity theft, demonstrable errors by police, witnesses, or court staff, fraud on the court, or conduct that is no longer a crime. That requires clear and convincing evidence. A prosecutor also cannot condition a plea deal on your giving up the right to expunge.
How we help
We start by getting your record and checking each entry against the waiting periods and exclusions. Then we choose the right path, prepare the petition, and, when a hearing is required, present the case for sealing to the judge.
Lisa DiLibero, Esq., handles the firm's Massachusetts matters. Call 401-621-9700 to talk about your record.
Frequently asked questions
For a conviction, 3 years for a misdemeanor or 7 years for a felony, counted from the conviction or the end of any incarceration, whichever is later. A dismissal or nolle prosequi can be sealed by a court without a statutory waiting period.
Generally yes. An OUI is not one of the offenses excluded from sealing under M.G.L. c. 276 § 100A, so it can be sealed after the waiting period if you otherwise qualify. It cannot be expunged under the time-based expungement law.
On applications for employment, housing, or an occupational or professional license, you may generally answer “no record” about a sealed record. Law enforcement, courts, and appointing authorities can still see it.
Sealing hides the record from most people but keeps it on file. Expungement permanently erases it. Expungement is available only in narrow situations.
There is no fee to request sealing. You can choose to hire a lawyer to prepare the petition and argue at a hearing.
Generally yes. A case continued without a finding and later dismissed can be sealed through the Commissioner of Probation under § 100A after the waiting period. A court petition under § 100C may also be possible in some cases.
Next step
Thinking about sealing your record?
Call 401-621-9700 or send us a message about sealing a Massachusetts record. The first conversation is free.