Expungment of Deferred Adjudication in Massachusetts

Full Question:

About 2 years ago, I was arraigned for a drug charge for possession class B. My lawyer was able to get me a Continuance Without a Finding and I was given 1 year probation. I saw the probation officer about every 2 weeks and at the end of the year, my probation was terminated, and my case was Dismissed. I asked the court to seal this record about 6 months later and it was turned down siting G.L. c. 276, 100A . The judge wrote that the general law permits "the sealing of criminal dispositions where probation was ordered before the case was dismissed and cannot be sealed for 10 years after the completion of a sentence". Is my year of probation a sentence? He further stated, "the above offense is a misdemeanor". As far as I know, I never pleaded guilty in this case and I was never convicted. This was quite devastating as I am in the medical profession. I believe that according to M.G. Laws that on job applications it is legal me to answer 'no' when asked if I have ever been convicted of a crime. Is this true?
03/19/2009   |   Category: Criminal ยป Expungement ...   |   State: Massachusetts   |   #15694

Answer:

The answer will depend on the statutes you were sentenced under. If you received a withheld, pretrial diversion, or deferred adjudication, typically the case is dismissed without a finding of guilt if the terms of probation are completed successfully. After such dismissal, a person may truthfully answer no when asked if ever convicted of a crime. However, some applications may also ask if you've ever received a deferred adjudication. I suggest you consult with a local attorney who can review all the facts and documents involved.

The following are MA statutes:

G.L.c. 94C, § 44. Violations of sec. 34; acquittal, dismissal or
indictment nol prossed; sealing of records.

Section 44. If any person is found not guilty of the violation of any
provision of section thirty-four or if a complaint against him is
dismissed or an indictment nol prossed for a violation of said section,
the court shall order all official records relating to his arrest,
indictment, conviction, continuance or discharge to be sealed; provided,
however, that departmental records maintained by police and other
law enforcement agencies which are not public records shall not be
sealed.

No person as to whom such sealing has been ordered shall be held
thereafter under any provision of any law to be guilty of perjury or
otherwise making a false statement by reason of his failure to recite
or acknowledge such arrest, indictment, disposition, sealing or any
other related court proceeding, in response to any inquiry made of
him for any purpose.

G.L.c. 94C, § 34. Unlawful possession of particular controlled
substances, including heroin and marihuana. **Update Notice: This section
has been amended by Chapter 387 of 2008

Section 34. No person knowingly or intentionally shall possess a
controlled substance unless such substance was obtained directly, or
pursuant to a valid prescription or order, from a practitioner while
acting in the course of his professional practice, or except as otherwise
authorized by the provisions of this chapter. Except as hereinafter
provided, any person who violates this section shall be punished by
imprisonment for not more than one year or by a fine of not more than one
thousand dollars, or by both such fine and imprisonment. Any person who
violates this section by possessing heroin shall for the first offense be
punished by imprisonment in a house of correction for not more than two
years or by a fine of not more than two thousand dollars, or both, and
for a second or subsequent offense shall be punished by imprisonment in
the state prison for not less than two and one-half years nor more than
five years or by a fine of not more than five thousand dollars and
imprisonment in a jail or house of correction for not more than two and
one-half years. Any person who violates this section by possession of
marijuana or a controlled substance in Class E of section thirty-one
shall be punished by imprisonment in a house of correction for not more
than six months or a fine of five hundred dollars, or both. Except for an
offense involving a controlled substance in Class E of section
thirty-one, whoever violates the provisions of this section after one or
more convictions of a violation of this section or of a felony under any
other provisions of this chapter, or of a corresponding provision of
earlier law relating to the sale or manufacture of a narcotic drug as
defined in said earlier law, shall be punished by imprisonment in a house
of correction for not more than two years or by a fine of not more than
two thousand dollars, or both.

If any person who is charged with a violation of this section has not
previously been convicted of a violation of any provision of this chapter
or other provision of prior law relative to narcotic drugs or harmful
drugs as defined in said prior law, or of a felony under the laws of any
state or of the United States relating to such drugs, has had his case
continued without a finding to a certain date, or has been convicted and
placed on probation, and if, during the period of said continuance or of
said probation, such person does not violate any of the conditions of
said continuance or said probation, then upon the expiration of such
period the court may dismiss the proceedings against him, and may order
sealed all official records relating to his arrest, indictment,
conviction, probation, continuance or discharge pursuant to this
section; provided, however, that departmental records which are not
public records, maintained by police and other law enforcement agencies,
shall not be sealed; and provided further, that such a record shall be
maintained in a separate file by the department of probation solely for
the purpose of use by the courts in determining whether or not in
subsequent proceedings such person qualifies under this section. The
record maintained by the department of probation shall contain only
identifying information concerning the person and a statement that he has
had his record sealed pursuant to the provisions of this section. Any
conviction, the record of which has been sealed under this section, shall
not be deemed a conviction for purposes of any disqualification or for
any other purpose. No person as to whom such sealing has been ordered
shall be held thereafter under any provision of any law to be guilty of
perjury or otherwise giving a false statement by reason of his failure to
recite or acknowledge such arrest, indictment, conviction, dismissal,
continuance, sealing, or any other related court proceeding, in response
to any inquiry made of him for any purpose.

Notwithstanding any other penalty provision of this section, any
person who is convicted for the first time under this section for the
possession of marihuana or a controlled substance in Class E and who
has not previously been convicted of any offense pursuant to the
provisions of this chapter, or any provision of prior law relating to
narcotic drugs or harmful drugs as defined in said prior law shall be
placed on probation unless such person does not consent thereto, or
unless the court files a written memorandum stating the reasons for
not so doing. Upon successful completion of said probation, the case
shall be dismissed and records shall be sealed.

It shall be a prima facie defense to a charge of possession of
marihuana under this section that the defendant is a patient certified to
participate in a therapeutic research program described in chapter
ninety-four D, and possessed the marihuana for personal use pursuant to
such program.

CHAPTER 276A. DISTRICT COURT PRETRIAL DIVERSION OF SELECTED OFFENDERS


Chapter 276A: Section 7. Expiration of stay or continuance; report of successful completion or recommendation of extension


Section 7. Upon the expiration of the initial ninety-day stay of proceedings or a continuance without a finding, the program director shall submit to the court a report indicating the successful completion of the program by a defendant or recommending an extension of the stay of proceedings or a continuance without a finding for not more than an additional ninety days, so that the defendant may complete the program successfully.

If the report indicates the successful completion of the program by a defendant, the judge may dismiss the original charges pending against the defendant. If the report recommends an extension of the stay of proceedings or a continuance without a finding, the judge may, on the basis of the report and any other relevant evidence, take such action as he deems appropriate, including the dismissal of the charges, the granting of an extension of the stay of proceedings or a continuance without a finding, or the resumption of criminal proceedings. In the event that an extension of the stay of proceedings or a continuance without a finding is granted, the program director shall submit a final report upon the expiration of such stay of proceedings.

CHAPTER 276A. DISTRICT COURT PRETRIAL DIVERSION OF SELECTED OFFENDERS


Chapter 276A: Section 4. Inapplicability of chapter to certain otherwise eligible persons


Section 4. In the event that an individual who is eligible under the provisions of section two is charged with a violation of chapter ninety-four C, nothing in this chapter shall be construed to limit the effect or operation of sections thirty-eight to fifty-five, inclusive, of chapter one hundred and twenty-three.

In the event that an individual who is eligible under the provisions of section two is charged with a violation of one or more of the offenses enumerated in section three of chapter one hundred and twenty-three A, the provisions of this chapter shall not be applicable for said defendant.

A person charged with violating the provisions of subsection (a) of section fifteen A, subsection (a) of section fifteen B, subsection (a) of section eighteen and subsection (a) of section nineteen of chapter two hundred and sixty-five or subsection (a) of section twenty-five of chapter two hundred and sixty-six shall, for the second or subsequent such offense, not be diverted to a program as provided in section two.

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