A Massachusetts criminal record can follow a person long after a case ends. Sealing hides a record from most people; expungement destroys it. The law allows expungement only in narrow situations.
This guide walks through expungement in the order it happens, then explains how it differs from sealing. For what a record contains in the first place, see What Is in a Massachusetts Criminal Record?
First, the Basics: What Expungement Means
Expungement means the record is permanently erased or destroyed, not just hidden.
Expungement was created by the Criminal Justice Reform Act of 2018 and appears in G.L. c. 276, §§ 100E–100U.
Under § 100E, to expunge a record means to permanently erase or destroy it so that it is no longer accessible to, or kept by, the courts, criminal justice agencies, or any state, county, or municipal agency. If a record also contains information about other people, it may be kept with the petitioner’s identifying information removed.
The Commissioner of Probation heads the office that keeps records of criminal court appearances and dispositions in Massachusetts. Time-based expungement petitions start there.
The law has two separate paths. Time-based expungement (§§ 100F–100J) is for certain offenses committed before age 21. Reason-based expungement (§ 100K) is for records created by errors, fraud, identity theft, or conduct that is no longer a crime.
Step 1: Time-Based Eligibility for Offenses Before Age 21
Time-based expungement is limited to offenses committed before age 21, after a waiting period, by people with no other record.
Under § 100I, the Commissioner must certify a record as eligible only if all of these conditions are met:
- The offense is not excluded. It cannot be one of the offenses listed in § 100J (see Step 2).
- Age. Every offense in the petition occurred before the petitioner’s 21st birthday.
- Waiting period. At least 7 years have passed if the record includes a felony, or 3 years if it includes only misdemeanors. The offense and any incarceration, custody, or probation must all fall at least that far before the filing date.
- No other Massachusetts record. The petitioner has no other criminal or juvenile court appearances or dispositions on file with the Commissioner, except motor vehicle offenses with a penalty of no more than a $50 fine.
- No out-of-state or federal record. The same $50 motor vehicle exception applies.
- No known investigation. The petitioner certifies that, to their knowledge, they are not the subject of an active criminal investigation.
A felony is a crime punishable by imprisonment in state prison; all other crimes are misdemeanors (G.L. c. 274, § 1). For § 100I, a violation of an abuse prevention order (c. 209A, § 7) or a harassment prevention order (c. 258E, § 9) counts as a felony.
A petitioner may seek expungement of no more than two records; multiple offenses from the same incident count as one (§§ 100F–100H).
Step 2: Offenses That Cannot Be Expunged Based on Time
Section 100J lists 20 categories of offenses that are never eligible for time-based expungement, no matter how young the person was or how long ago the case ended.
The excluded categories include:
- Any offense resulting in death or serious bodily injury, or committed with intent to cause death or serious bodily injury.
- Any offense committed while armed with a dangerous weapon.
- Any offense against an elderly person (age 60 or older, under § 100E) or a disabled person.
- Sex offenses, sex offenses involving a child, and sexually violent offenses as defined in c. 6, § 178C, and sexual offenses under c. 123A, § 1.
- Any violation of c. 90, § 24, which includes operating under the influence (OUI).
- Any violation of the firearms laws in c. 140, §§ 121–131Q, and violations of c. 269, § 10(a)–(d) and § 10E.
- Violations of court orders issued under c. 208, §§ 18 and 34B; c. 209, § 32; c. 209A; c. 209C, § 15; and c. 258E.
- Any violation of c. 265, § 13M, and any felony under chapter 265, the chapter covering crimes against the person.
The reason-based path in § 100K is not limited by this list.
Step 3: Filing the Petition With the Commissioner of Probation
A time-based petition is filed with the Commissioner of Probation, not with a judge, and the Commissioner decides first whether the record qualifies.
The petition is made on the Commissioner’s form, signed under the penalties of perjury. The section depends on the record:
- § 100F: records of delinquency or youthful offender adjudications (juvenile cases).
- § 100G: records that include a conviction.
- § 100H: records with no conviction or adjudication, such as dismissed cases.
The Commissioner certifies whether the petitioner meets §§ 100I and 100J. If not, the Commissioner denies the petition in writing within 60 days (30 days under § 100H); if so, the Commissioner notifies the district attorney within the same deadline.
Step 4: The District Attorney’s Response and the Judge’s Decision
The district attorney may object, and a judge makes the final decision in every case.
The district attorney has 60 days to file written objections (30 days under § 100H). Under §§ 100F and 100G, the Commissioner then forwards the petition, with any objections, to the court where the case was heard.
If the DA objects, the court must hold a hearing within 21 days of receiving the petition. The public is excluded from expungement hearings (§ 100P).
If the DA does not object, the court may approve the petition without a hearing.
Either way, the judge decides based on the best interests of justice and must enter written findings. The judge must deny any petition that does not meet §§ 100I and 100J. An order of expungement goes to the clerk, the Commissioner of Probation, and the Department of Criminal Justice Information Services (DCJIS), the state agency that runs the CORI system.
The Other Route: Reason-Based Expungement Under § 100K
Section 100K lets a judge expunge a record, whatever the offense or age, if it exists because of a specific error, fraud, or change in the law.
Under § 100K(a), the judge must find by clear and convincing evidence, a high standard of proof, that the record was created as a result of:
- False identification, or the theft or unauthorized use of the petitioner’s identity;
- An offense that is no longer a crime, unless the same conduct is still a crime under a different name;
- Demonstrable errors by law enforcement;
- Demonstrable errors by civilian or expert witnesses;
- Demonstrable errors by court employees; or
- Demonstrable fraud on the court.
This path applies “notwithstanding” §§ 100I and 100J, so their age, waiting-period, and excluded-offense rules do not apply. The court must hold a hearing if the petitioner or the DA requests one, and must enter written findings (§ 100K(b)).
The court’s discretion. Even when one of these reasons is proven, § 100K(b) gives the court “the discretion to order an expungement” based on “what is in the best interests of justice.” The order is then sent to the clerk, the Commissioner of Probation, and DCJIS (§ 100K(c)).
After an Order: What Expungement Changes
Once a record is expunged, the agencies that held it must destroy it and report that no record exists.
- Records destroyed. The Commissioner, the clerk, and DCJIS must expunge the record and order criminal justice agencies to expunge public police logs. Agencies must then tell anyone who asks, including other agencies, that no record exists (§ 100L).
- No perjury. A person is not guilty of perjury or a false statement for failing to acknowledge an expunged record (§ 100M).
- Government jobs, courts, and licenses. An expunged record cannot disqualify a person from state, county, or municipal employment, and cannot be used in court, before boards or commissions, or in professional licensing decisions (§ 100N(a)).
- Job applications. Any employer application that asks about arrests or convictions must state that an applicant with an expunged record may answer “no record” (§ 100N(b)).
- Petition records. The petition and order are not public records and must be expunged within 60 days of the order (§ 100O).
- Plea deals. It is a violation of public policy for a district attorney to make a plea deal contingent on waiving the right to expunge (§ 100R).
- Federal records. The Commonwealth must notify the FBI and the U.S. Department of Justice and ask them to seal or expunge the record (§ 100T).
How Expungement Differs From Sealing
A sealed record still exists and can be seen by police, courts, and certain others; an expunged record is gone.
Sealing by request (§ 100A). A person of any age may ask the Commissioner of Probation to seal a record after 3 years for misdemeanors or 7 years for felonies, with no new convictions in that time. The Commissioner “shall comply” when the conditions are met. Convictions under the firearms laws (c. 140, §§ 121–131H) and under chapters 268 and 268A (except resisting arrest) are not covered. Sex offenses cannot be sealed for at least 15 years, and never for anyone classified as a level 2 or 3 sex offender.
Sealing of non-convictions (§ 100C). A not guilty verdict, a no bill (a grand jury’s decision not to indict), or a finding of no probable cause is sealed automatically unless the defendant asks in writing that it not be. For a dismissal or nolle prosequi (a prosecutor’s decision to drop the case), the court shall direct the clerk to seal the records if “it appears to the court that substantial justice would best be served.”
Who can still see a sealed record. Criminal justice agencies may access sealed records for their duties (§ 100D). Firearms licensing authorities may obtain them for licensing (c. 6, § 172(a)(1)). Section 100A also allows a sealed record to be used in sentencing on a later offense, and, after a judge’s private review, in certain custody, abuse, and family proceedings. For an expunged record, agencies, including criminal justice agencies, must report that no record exists (§ 100L).
What they share. For both, applicants may answer “no record” to covered questions (§§ 100A, 100C, 100N). No one may make sealed or expunged records available for inspection (§ 100Q).
For sealing and employer checks, see What Can My Employer See? and Other Penalties of a Criminal Charge in Massachusetts.
Frequently Asked Questions
Can I expunge an OUI in Massachusetts?
Not through time-based expungement. Violations of c. 90, § 24, which includes OUI, are excluded by § 100J. Reason-based expungement under § 100K is available only if the record resulted from one of the listed reasons, such as identity theft or a demonstrable error.
If my case was dismissed, is it automatically expunged?
No. Expungement under §§ 100F–100K requires a petition and a court order. A dismissed case may be eligible for sealing under § 100C, for time-based expungement under § 100H if the § 100I conditions are met, or for expungement under § 100K if one of its reasons applies.
Questions About Expunging or Sealing Your Record? Talk to a Lawyer
Whether a record qualifies often turns on the exact charges, dates, and dispositions. The Law Office of William J. Barabino in Medford has over 23 years of experience in Massachusetts criminal defense and represents clients throughout Greater Boston.
Call 781-393-5900 for a confidential consultation.
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Disclaimer
This article is for general educational purposes only and is not legal advice. Expungement and sealing law depends heavily on the specific record, and statutes and court decisions change. Reading this page does not create an attorney-client relationship. If you have questions about expunging or sealing a Massachusetts record, consult a licensed Massachusetts criminal defense attorney about your situation.
