Sealing or Expunging Your Criminal Record

Sealing or Expunging Your Criminal Record

Does your criminal record need to be cleaned up? It is important to understand the impact that your criminal record and associated criminal history may have on employment, volunteer opportunities, coaching youth organized sports, field trips, and other endeavors. Whether the person looking into your criminal record has access to your criminal history information depends upon the manner in which you were charged, whether you were arrested, the type of case you were charged with (misdemeanor or felony) how long ago you resolved your case and how old you were at the time. These factors will play a role in whether your history is visible to the person who wants a copy of your record. There different levels of access to a criminal record and whether a person looking for your criminal history will be granted access would be determined in part by the factors listed above. The important question is how to limit this access even further. This brings me to the advice I would give anyone with a criminal record whether juvenile or adult – look into the ability to seal or expunge your criminal record. If you seal your criminal record, then the ability to access that information is limited to law enforcement and the like. If you fall into the small number of cases in which expungement is an option – you may be able to remove the case from your record as if it never happened.

Although the need for access to a person’s criminal history may be necessary, that does not mean that your particular case needs to fall within this category. There are two different ways to petition a court to seal or expunge your criminal record. The first option is based upon the amount of time that has passed since the incident occurred and the second is a direct petition to the judge regardless of the time since the case was resolved. The ability to seal based upon meeting the minimum time requirements is an easier hurdle than petitioning the court to seal your criminal record before the expiration of those minimum time standards. If your case is successfully sealed – Massachusetts law requires that any record check returned indicate “no record” instead of indicating the existence of a sealed charge/conviction.

 

The ability to expunge a criminal record requires the highest showing of need; that either you meet the minimum standards set by the Board of Probation and fall into the category of individuals contemplated when implementing this legislation (predominantly individuals 23 or younger) or you can show the court that some sort of major mistake was made with respect to your case. The process of obtaining an expungement is relatively new as it only came into effect at the end of 2018. However, if you do meet the standards as set forth by the legislature, this option may be your best option and can accomplish your ultimate goal of cleaning up your criminal record.

What is Juvenile Diversion?

Juvenile Diversion aimed at rehabilitation and an understanding of consequences for one’s actions. In April of 2018, Massachusetts passed a Crime bill that allows greater flexibility to juvenile judges as it relates to certain charges and associated penalties. The law expands the ability of the Judiciary to adopt Juvenile Diversion programs. The law’s approach to juvenile crime can often be confusing and difficult to navigate. If a minor (Under the age of 18) has committed a crime, it’s possible that the juvenile would qualify for a “restorative justice” or juvenile diversion program. Juvenile diversion programs may vary depending on the crime, but usually involve offenders taking responsibility for their actions by helping them understand the consequences of their crimes, and providing an opportunity for making restitution. It permits an opportunity for the juvenile to address the matter and minimize the impact to their criminal record.

According to Session Law, chapter 69, restorative justice constitutes a “voluntary process whereby offenders, victims and members of the community collectively identify and address harms, needs and obligations resulting from an offense, in order to understand the impact of that offense; provided, however, that an offender shall accept responsibility for their actions.”

In layman’s terms, the juvenile diversion program may mandate that the offender complete community service, undergo counseling, enter and complete programming for drugs or alcohol, write a letter of apology, complete a driving course, etc. The goal of the program is to have the juvenile learn from their mistake, correlate the punishment to the offense and prevent the juvenile from committing the same offense or hopefully another criminal offense again.

It is important to note that participation in juvenile diversion is voluntary. These programs may be recommended pre-arraignment or at any stage during a case as long as the district attorney and the victim give their consent. Successful completion of a community-based restorative justice program or more commonly referred to as juvenile diversion will result in the charge being dismissed, while any violation of the program will cause the case to be returned to court.

Some offenders are wary of participating in a diversion program, fearing that it amounts to an admission of guilt, that is not the case. Taking part in these programs does not reflect guilt, nor can any statement made during the course of the program be held against them in court.

Restorative justice has become an increasingly popular option in courts all across the country. This method actually has the highest rate of victim satisfaction and offender accountability compared with more traditional methods. Studies also suggest that it makes offenders far less likely to reoffend because rather than merely administering punishment, it actually educates the offender.

 

A defendant is not eligible for community-based restorative justice programs if they have been charged with a sexual offense, an offense against a family or household member, or an offense resulting in serious bodily injury or death.

What are My Miranda Rights and My Right to Remain Silent?

Under the United States Supreme Court case Miranda v. Arizona, a defendant has specific Miranda Rights including the right to remain silent and the right to be represented by an attorney. Once a defendant invokes his or her Miranda Rights, the officers are no longer permitted to question the witness and must honor that right to remain silent and stop questioning immediately. While biographical questions can be asked such as name, address etc. can be asked and those answers and those answers can be admitted, any question that is deemed investigatory must be suppressed. The assertion of a right to remain silent or to be represented by counsel must be conveyed clearly to the police. It must be an unquestionable assertion of the Miranda Rights before the Commonwealth is compelled to honor that right. However, once one of the Miranda Rights is invoked to one officer, knowledge of that invocation is imputed to the remaining officers under current case law. At that point, the officers are no longer able to question the defendant.

 

May the police resume questioning at a later time? The answer is complicated and dependent upon whether that right has been “scrupulously” honored by police. Further, the court have used several factors to determine whether an officer can reassume questioning after a defendant asserts one of his Miranda Rights, specifically the right to remain silent or be represented by counsel. The court will consider time elapsed, nature of questioning, location of questioning, topic of questioning and the individual asking the questions. Furthermore, the court will look to see if the defendant was reread his Miranda Rights and whether there was a voluntary and intelligent waiver of those rights.

The court puts a heavy emphasis on a defendant’s right to remain silent and his right to counsel. Prevailing caselaw dictates that the rights be honored and questioning only permitted to be resumed once the Commonwealth can prove beyond a reasonable doubt that the defendant understood those rights and voluntarily waived the rights previously

asserted. If you believe that your Miranda Rights have been violated, give me a call today for a free consultation.

What to do if you are stopped for suspicion of Operating Under the Influence of Alcohol/OUI in Massachusetts

Know Your Rights

It is also your right to say “no” to a portable breath test (PBT) or field sobriety tests. This is the way the police officer will gain probable cause that you are drinking and driving. Don’t give them evidence against you. Instead, know and exercise your constitutional rights. In most cases, the fact that you refused a field sobriety test cannot be used against you in court. If the officer does arrest you or ask you to take a breathalyzer test or blood alcohol test, you can still refuse. The consequence will usually be a driver’s license suspension. However, if you are not convicted of a OUI, the suspension can often be reversed.Whether you are innocent or guilty, it is normal to be stressed during a OUI traffic stop. 

People are often afraid it will look bad if they don’t cooperate, so they tell the police far too much. The truth is you don’t have to say a word. It is your constitutional right to stay silent, even if your Miranda rights are not read. This typically does not occur until an officer intends to make an arrest. Before that time, the officer will do anything he can to get you to incriminate yourself. But without the evidence you give him, an officer will have no probable cause for arrest. Always stay calm and polite. Respectfully, tell the officer your name and address. Then, say “I will not give anymore information until my attorney is present.” This is just one of many ways to protect yourself in a drunk driving investigation. 

Police officers have a close relationship with prosecutors and are well-trained in interrogation techniques. They may appear friendly or docile in an effort to get your guard down so you admit your own guilt to help them build their case. They might tell you that you won’t serve jail time if you simply confess. This is simply not true.. A judge is the only one who determines sentencing. While it is perfectly legal for a police officer to lie, it can be devastating to your case if you lie to an officer. 

Most states require an arresting officer to observe a driver for 15 minutes before giving a breath test. However, this step is often overlooked. Many officers may even lack probable cause for the traffic stop. Often they will cut corners during field sobriety tests or ask questions that violate a citizen’s rights. If you avoid self-incrimination, a skilled attorney can use police error to have evidence excluded from trial or possibly obtain a dismissal.

If you are charged with a OUI, it is crucial to remain calm. Find an attorney with experience in OUI cases. The police do not want you to know your rights. If you or a loved one has been charged with OUI, I invite you to contact me for a free consultation. Please contact me at 978-792-5035.

What To Do If You Are Arrested

If you are arrested,  if is imperative that you invoke your right to remain silent, and inform the police  you wish to speak with an attorney.

Do not make any statements.

Do not attempt to explain your way out of the situation. The police are only interested only in gathering evidence against you, which can be used to prosecute you in a court of law.

Remain silent. Ask for an attorney.

Does a trial by Zoom violate a Defendant's rights? The Massachusetts Supreme Judicial Court to Decide.

A Criminal defendant in this country has a right to trial in front of a jury of their peers or one in front of a Judge. Additionally, the Sixth Amendment of the United States Constitution and Article Twelve of the Massachusetts Declaration of Rights guarantees a defendant’s right to confront a witness at trial. 

However, it has been nearly two years since the inception of COVID-19 pandemic, and day to day life is just starting to get back to a "new normal" while the judicial system also tries to adjust. The case of Commonwealth v. Curran will decide whether Zoom proceedings interfere with a defendant’s rights. 

What happened in Curran

On August 24, 2020, Curran was on Zoom, while his attorney was in the Fitchburg District Court because the case was scheduled for a bench trial. A bench trial is a trial in front of a judge, rather than a jury. During the trial, Curran was at the Worcester County House of Correction. The Court conducted a colloquy with the defendant regarding only the waiver of his constitutional right to be tried by a jury. Witnesses testified over Zoom and alleged that Curran choked and ripped the hair out of a female victim whom he lived with. Curran was convicted of one count of assault and battery and sentenced to a year in jail. 

Curran argues that the colloquy given for a jury trial waiver is inadequate as a matter of law. He asserts that it fails to fully apprise the criminal defendant of the rights he is giving up by being tried remotely. These rights include the right to be present during a trial, the right to a public trial, the right to confront and cross-examine the witness, and the right to effective assistance of counsel, which should afford the defendant the opportunity to consult with his lawyer during trial. Curran alleges that he was deprived of all of these rights in his case due to the virtual nature of the case, and the trial judge never made an inquiry in that regard. A colloquy is conducted by the court to determine that a defendant’s waiver of rights is both known and voluntary. However, due to the unprecedented nature of the pandemic, the judge did not properly conduct a colloquy with Curran, and as a result, Curran argues that he was waiving rights and privileges that come with an in-person trial. 

Additionally, the Sixth Amendment’s “Confrontation Clause” gives a criminal defendant the right to confront their witness during a criminal trial, with limited exceptions. It is easy to see that confrontation over a computer screen is not the same as in-person confrontation. In Curran’s case, the trial judge did not make any inquiry as to the defendant’s rights to be physically present and to confront his witnesses in person. 

Finally, Curran argues that he was denied his right to effective assistance of counsel. Curran and his attorney could not confer during the trial because they were in two different locations. Curran could not participate in his own trial and instead could only observe virtually. He could not discuss the trial with his attorney or decide whether to testify. 

Curran hopes that in the future that judges will be required to advise a criminal defendant on the potential rights they are surrendering by having a trial remotely.