The law has changed and you may be able to seal or expunge your criminal cases for possession of marijuana.
In 2016 voters approved a ballot question that made possession of small amounts of marijuana legal. The law went into effect December 15, 2016. It allows anyone over age 21 to have small amounts of marijuana at home and to carry up to two ounces without criminal penalties. G.L. c. 94G, § 13(e).
In 2018, another law on passed which allows judges to expunge cases for offenses that are no longer criminal offenses like possession of 2 ounces or less of marijuana. G.L. c. 276, § 100K.
The Massachusetts sealing law lets you seal crimes that are no longer criminal offenses. G.L. c 276, § 100A. If you have a past criminal case for marijuana possession and the case involved only 2 ounces or less of marijuana, you can seal the possession case now instead of having to wait for the waiting period to expire. The new law covers only charges for “possession” and not “possession with the intent to distribute” or other drug crimes.
Differences between sealing and expungement
Sealing of a case only limits who can find out you have a past criminal case. Expungement means the records of your case are destroyed so that employers and even police no longercan find out about the case through the CORI system.
Warnings about sealing and expungement
- Your criminal record history is reviewed when you apply for a “green card,” citizenship or try to change your immigration status. A criminal record can be grounds for exclusion or deportation. The FBI often has records of a criminal case even if the state court record was sealed or expunged. FBI records often do not include the final outcome of a case. This means you may not be able to show how your case ended, or prove you were found not guilty, or that the case was dismissed if you expunge your records. You also might need certified copies of your record for other reasons.
- There also may be other situations where you will need your records and destruction of the records could interfere with other legal rights, such as possibly getting money back for fees you paid in a case dismissed due to the Dookhan or Farak drug lab scandals.
- Once your records in Massachusetts are expunged, it is unlikely that you will be able to get copies of the court, police or other records that were destroyed.
- If there are no records, you may be unable to prove how your case ended, or that you were found not guilty or that the case ended favorably.
- If you decide to seal or expunge records, you should get certified copies of your records in case you need them in the future.
How to seal your record
The Massachusetts sealing law lets you immediately seal marijuana offenses that are no longer a crime. G.L. c 276, § 100A.
You can seal the case without a waiting period if you have a past criminal case for:
- possession and
- the case involved only 2 ounces or less of cannabis (marijuana).
You can only seal cases from a Massachusetts court, not out-of-state or federal court cases.
The law only decriminalized charges for “possession,” not “possession with the intent to distribute” or other drug crimes. G.L. c. 94G, § 13.
The sealing process is free and quick. There is no hearing and the Commissioner of Probation seals the case as long as it was a charge for possession of 2 ounces or less of marijuana. You can seal cases from a Massachusetts court, but not out-of-state cases or federal court cases.
Mail or deliver your PETITION to the Commissioner of Probation, One Ashburton Place, Rm 405, Boston MA 02108. You will get a reply by mail from the Commissioner within a few weeks telling you if your request was approved. If the petition is denied, seek legal advice about your rights.
If your petition to seal is approved, you can say you have “no record” as to the record that was sealed. G.L. c. 276 §§ 100A.
New Massachusetts law requires that the FBI and Dept. of Justice (DOJ) be notified of sealing orders and that our state request that they seal their corresponding records. G.L. c. 276, § 100T; G.L. c. 22C, § 36.
How to expunge your record
If you are not a citizen
Do not expunge your records until you get legal advice from an immigration lawyer about whether to expunge your records.
A conviction, a continuance without a finding or other criminal record can be grounds for deportation or exclusion. If your records are expunged, they are destroyed and no longer exist. You might not get paperwork you need for an immigration hearing or an application if your criminal records are expunged. You also might need certified copies of your record for other reasons.
You can expunge decriminalized juvenile cases and criminal cases that involved possession of 2 ounces or less of marijuana. You can expunge cases from a Massachusetts court, but not out-of-state cases or federal court cases.
The process is free and a petition form must be filed in the court that handled the case. The law provides that a hearing is held if a petitioner or the District Attorney request a hearing. The law is new and we do not yet know how long the court will take to decide cases. Unlike sealing, a judge has the power to not allow your request. The judge must decide that expungement is “in interests of justice” to order expungement of your record.
If the court denies your petition, you should seek legal advice. You can also consider sealing the case.
If expungement is ordered, the court sends the expungement order to
- the clerk of the court where the record was created, to
- both commissioners of probation and criminal justice information services, and
- the clerk’s office and
- criminal justice agencies (police, probation, DYS, etc.).
They are instructed to expunge records related to the case. G.L. c. 276, § 100L.
After a record is expunged, the law provides that no person whose record was expunged shall be held guilty of perjury or giving a false statement by reason of the person's failure to acknowledge such record, or portion thereof, in response to any inquiry made of him or her for any purpose.
New Massachusetts law requires that the FBI and Dept. of Justice (DOJ) be notified of sealing and expungement orders and that our state request that they seal or expunge their corresponding records. G.L. c. 276, § 100T; G.L. c. 22C, § 36.
If your request to seal or expunge is denied
If the commissioner or the court denies your petition, you should seek legal advice. If you tried to expunge your record and your petition was denied, you can also consider sealing the case which is easier to do because a judge is not required to write reasons why it is in the interests of justice to allow your request.