Massachusetts Criminal Lawyer Blog

CB, a senior at a local state college, was heading back to school when he got pulled over for a broken taillight. The officer got up to the driver's window and was immediately struck by the strong and distinctive odor of marijuana. One thing led to another and by the time the police were done they had seized a quantity of marijuana from the car along with a scale, packaging materials, and over $3,000.00 in cash. CB made incriminating statements to the police. CB was arrested and charged with Possession of Class D with intent to Distribute. CB, a Dean's list student, is due to graduate from college in May and saw his future job prospects going up in smoke. CB retained Lewin & Lewin to represent him. The facts did not lend themselves to a good Motion to Suppress and the evidence of guilt was overwhelming. Initially the Assistant District Attorney was looking for a conviction and a 2 year term of supervised probation. Attorney Robert Lewin met with the Assistant District Attorney and advocated on behalf of CB. The Assistant DA agreed to a continuance without a finding and agreed to lower the term of the probation to one year. On February 8, 2013 Attorney Joshua Lewin appeared in Dorchester District Court with CB. A tender of plea was presented to the Judge. Attorney Lewin asked the judge to continue the case without a finding for three months (to CB's graduation date from college). Ultimately the Judge agreed to continue the case without a finding for six months. The Judge ordered that the probation was to be administrative. Provided CB stays out of trouble, the charge will be dismissed on August 8, 2013. At that time Attorney Lewin will file a Petition to Seal the record. If the Petition is granted the record will be sealed and it will be as if the case did not happen. In addition had there been a conviction (guilty finding) CB would have lost his license for 2 years; because the case was continued without a finding CB suffered no loss of license. Wins come in all shapes and sizes. CB was thrilled with the result: he was not found guilty; he did not lose his license; his case will be dismissed in six months; and he will be well positioned to get his record sealed in six months. He and his family were very concerned that this case would be disastrous for his future job prospects; now, however, In six months the record will be sealed and the case will not show up on his record.

GG, a 31 year old administrative assistant at a major health care organization, went out with her husband one night and had a bit too much to drink. Upon arriving back home GG accused her husband of having a liason with another woman which her husband denied. GG got angry with her husband and according to the police reports began to slap him in the face repeatedly. Husband called 911, the police responded, and GG got herself arrested and charged with assault and battery. She went to Waltham Court the next morning and got arraigned. GG retained Attorney Robert Lewin. Attorney Lewin prepared a marital affidavit for the husband to sign (he was agreeable to the case being dismissed). Attorney Lewin then met with the Assistant District Attorney and presented the marital affidavit to the Assistant D.A. Attorney Lewin then put the husband in direct contact with the Assistant DA assigned to the case and the husband made it clear that he wanted the case dismissed. On March 12, 2012 GG and her husband and Attorney Lewin appeared in Waltham District Court. At the first call of the case at 9:30 AM the Assistant District Attorney filed a nolle prosequi. A nolle prosequi is a termination of the prosecution of a criminal case by the Commonwealth. It is the Commonwealth's way of dismissing a case. Attorney Lewin is now preparing a petition to seal the record of the case; when the petition is granted the case will be removed from GG's criminal record and she once again will have no criminal record. By preparing the case early and by connecting with the District Attorney's Office early we were able to get the case dropped immediately.

On December 22, 2011 EO drove from his home in Woburn to the parking lot of the Chateau restaurant off Route 93 in Andover. He waited. Shortly after his arrival a vehicle with New Hampshire plates pulled in. A woman exited the vehicle with NH plates and she got into EO's vehicle. All this was happening under the watchful eye of an undercover State Trooper who was sitting in an unmarked car in the same parking lot. It appeared to the officer as if an exchange of some type was taking place in EO's car. After a while the woman got out of EO's car and headed back to her car. The undercover trooper went over to EO's car and told EO to stay put. The trooper then went over to the woman's car; according to the trooper she admitted selling 90 percocette pills to EO. The trooper arrested her. The trooper then went over to EO and asked EO if EO had anything the trooper should know about. EO handed the trooper a plastic bag with the 90 percocette pills. EO said the pills were for his own use; the Trooper said tell it to the judge and arrested EO and charged him with Possession of Class B with intent to distribute. This is a felony and a conviction carries a three year loss of license. EO retained Attorney Robert Lewin. EO insisted the pills were for his own use and that he was not a dealer. The history that EO presented is very common. EO had been employed by the public works department of a small town north of Boston. In 2005 he fell down a 30 foot manhole fracturing his leg. He had surgery on his leg and a rod was implanted with screws. When he was discharged from the hospital he was given a prescription for percocette - a highly addictive pain medication. In 2010 he developed an infection around the surgical location and a second operation was conducted. For the pain he was again prescribed percocette. He became addicted to the percocette and bought them in bulk from a drug dealer (the woman). Attorney Lewin obtained the following pieces of evidence and presented them to the Assistant District Attorney in an effort to get the DA's Office to reduce the charge from Possession with Intent To Distribute to Simple Possession: (1) A color photo taken in 2005 of the open manhole into which the EO had fallen; (2) the fire department report from the day of the accident of the rescue of EO from the manhole; (3) the ambulance report showing that EO had been brought to the hospital; (4) the surgical report from Mass. General Hospital detailing the implant of the rod and screws into EO's leg; (5) an x-ray showing the rod and screws in EO's leg; (6) the discharge summary from the hospital showing the prescription for percocette; (7) the hospital reports from 2010 showing the second surgery and the re-prescribing of percocette. Attorney Lewin presented all this evidence to the Assistant DA. The Assistant DA was convinced that EO was not a drug dealer and that these pills were for EO's personal use in controlling his pain. The DA dropped the "intent to distribute" charge. On February 8, 2012 EO and Attorney Lewin appeared in Lawrence District Court and the Judge took the reduced charge of simple possession and continued it without a finding for one year. If EO stays out of trouble for the one year the case will be dismissed and then the record can be sealed. As a result there is no conviction and no loss of license and in one year EO's record will be wiped clean.

TK, a 66 year old retired man from Boxford, was caught stealing dinnerware from Building 16 in Haverhill. He was charged with Larceny Over $250, a felony in Massachusetts. A review of the facts indicated that TK had lost his employment as a result of the recession. TK retained Attorney Robert Lewin. Attorney Lewin met with the Assistant District Attorney in Haverhill District Court and convinced the Assistant DA that TK was worthy of a break. On February 8, 2012 Attorney Lewin and TK appeared in Haverhill Court and by agreement TK's case was continued for six months without a finding. The judge waived the probation supervision fee and so long as TK stays out of trouble the case will be dismissed at the end of the six months. Under the new Massachusetts Criminal Records Law, TK will be eligible to request that his record be sealed at the end of the six months.

The importance of getting a criminal record sealed cannot be overstated especially if you are looking for work. RL is a 44 year old man from Billerica, MA and is a driver for a major transportation company. When he got his job no criminal record background check was done. At the beginning of January 2012 RL learned that his company was now demanding criminal record checks on all employees. RL had a criminal record that went back to 1985 and culminated in 1990 with two convictions for open and gross lewdness in Somerville District Court. If his employer were to learn of those two convictions it is almost a sure bet that RL would get fired. On Thursday, January 5, 2012 RL contacted Attorney Robert Lewin for the first time and arranged to meet with Attorney Lewin on the evening of January 5, 2012. Attorney Lewin had prepared the paperwork to get RL's record sealed and at their first meeting on January 5 RL signed the paperwork. Attorney Lewin immediately submitted the petition to seal record to the Board of Probation. On Monday, January 9, 2012 the Commissioner of Probation approved the Petition to Seal RL's criminal record. Thereafter, RL's employer had RL sign an authorization allowing the employer to obtain a copy of RL's criminal record. The employer submitted the authorization and the Board of Probation reported back that RL had no record of any criminal court appearances. There are two methods of getting a record sealed: one involves a Petition to Seal submitted directly to the Commissioner of Probation; the other involves a Petition to Seal submitted directly to the court where the criminal case was heard.The type of Petition that is used is determined by how old the criminal record is and the date of the last criminal case on the record. In RL's situation, his cases were old enough that he was entitled to have his record sealed by a Petition submitted directly to the Commissioner of Probation. This type of Petition is easy, quick, and inexpensive. The firm of Lewin & Lewin does many Petitions to Seal over the course of a year and is highly successful.

On Friday night January 21, 2011 BG, a senior at a local college, went to his school's hockey game at a rink in Malden. After consuming a few beers he became somewhat rude at the game and was asked to leave. Once outside one thing led to another and BG found himself under arrest for disorderly conduct. BG contacted his father - who happened to be a lawyer - and the father understood the ramifications of his son's having a criminal record, even for a minor misdemeanor such as disorderly conduct. Attorney Lewin was contacted on Saturday, January 22, 2011. On Sunday Attorney Lewin contacted the Malden Police and began to negotiate a dismissal of the case,prior to the arraignment. The arraignment was scheduled for Monday, January 24, 2011. On Monday morning Attorney Lewin and BG appeared at court; at first the DA was reluctant to dismiss the case prior to arraignment. Eventually Attorney Lewin was able to convince the DA to agree to the dismissal prior to arraignment and the Judge went along with it. The significance of the case being dismissed prior to arraignment is that no entry will be made on BG's CORI (criminal record). The case will not show up. It is rare for a DA or a Judge to go along with this; however, there is absolutely no harm in asking for the case to be dismissed prior to the arraignment as the worst the DA or the Judge can say is no. Had the case been dismissed after arraignment then the charge would show up on BG's record and he would then have to explain to every prospective employer who checks his record what the disorderly charge was all about. Now he will be free of that entry on his record; his record is clean.

What is a "Criminal Record"?

Records of criminal cases are kept in a number of different places in Massachusetts: these include the police department involved in the case; the District Attorney's Office or the Attorney General's Office; the Court or Courts where the case was prosecuted; the Massachusetts Board of Probation; and the Massachusetts Criminal History Systems Board. With certain very limited exceptions criminal records in Massachusetts are never expunged or destroyed. So, if you have been to court and your case was dismissed or you have been found not guilty the records of the case are not expunged or destroyed. The records of the case remain and they remain forever unless they are ordered sealed.

(1) The records of a criminal case kept by a police department - and these would include such things as the police investigative reports, police reports of witness statements and interviews, arrest reports, booking reports, etc. - are kept by the police departments for as long as the police department wishes to keep them. These records are unaffected by what goes on in Court. These records are also unaffected by any court order that the "court" record be sealed. Generally speaking, the public does not have access to most of these police records.

(2) Likewise the records of criminal cases prosecuted by the District Attorney's Office or the Attorney General's Office are kept for as long as the the respective office wishes to keep such records. Normally such records are maintained for decades and decades and are kept in State Archives. These records are unaffected by what goes on in Court. These records are unaffected by any court order that the "court" record be sealed.

(3) Records of Criminal Cases kept in the Clerk-Magistrate's Office of the Court: Every criminal case in every court in Massachusetts is given a case folder and a number. The case folder contains all the papers that are filed with the Court and all written orders, findings, and decisions that are generated by the Court. These case folders are called "Dockets" and they are maintained by the Clerk-Magistrate of the Court and they are kept in the Office of the Criminal Clerk-Magistrate of the particular Court. These are public records. In the Clerk's Office of the Court there is typically a card file cabinet (open to the public) where one can look up a person's name and find the Docket Number of all criminal cases in that Court under that person's name. Any member of the public can then request to see the Court Docket (folder) for that particular case and can purchase copies of all the papers in the Court folder. When a criminal record is ordered sealed, the court folder for that case is literally papered over so that it is no longer visible. (The folder is not destroyed, but it is taped closed and papered over.) The card in the card file for that case is also papered over.

(4) Massachusetts Board of Probation: The Massachusetts Board of Probation has a central office in Boston which services the entire state. Every Criminal Court in Massachusetts has a probation department that reports to the Board of Probation. The Board of Probation in Boston maintains the records of all criminal court activity for all persons who are charged in any criminal court in Massachusetts. Every person who has ever had a criminal case in any Massachusetts Criminal Court has a PCF Number. PCF stands for Probation Central File and a PCF is created upon arraignment. When a police department or a District Attorney's Office want to see if someone has a prior criminal record, an inquiry is made of the Board of Probation and the Board generates a copy of the PCF (Probation Central File) Record. This is a chronological listing of every criminal case in the PCF for the particular person. The listing shows for every criminal case the arraignment date, the court, the charge(s), and the disposition of the case. The PCF also includes a person's juvenile record and a person's record of civil abuse prevention orders. Many states do not have a centralized record keeping office for the whole state. Massachusetts does. The probation central file is generally available to courts and law enforcement agencies only. The probation central file is not available to the general public.

(5) Massachusetts Criminal History Systems Board: The Criminal History Systems Board (CHSB) is the state agency charged with making available criminal records to interested persons. Criminal Records are called CORI and CARI .(CORI = criminal offender record information) (CARI = Court Activity Record Information). The CHSB gets its information from the Massachusetts Board of Probation. Generally speaking the CHSB cannot give out criminal record information. There are exceptions: the Federal Government, Local, State, and Federal Law enforcement agencies have access to CARI and CORI. If an individual signs a release (for example to a prospective employer or to a college admissions department) then that prospective employer or college can request a copy of the person's CORI from the CHSB. When we talk about sealing records, this is the record (CORI and CARI) that we seek to make not available. Massachusetts has statutes that govern the sealing of records. Generally speaking the record of a conviction for a felony can be sealed after 15 years and the record of a conviction for a misdemeanor can be sealed after 10 years. There are certain drug crimes that allow for the sealing of the record immediately upon the completion of probation. The statutes provide that if a case is dismissed or a person is found not guilty, then the judge "may" order the record sealed. The case law in this area, however, has placed severe limitations on the power of a judge to order records sealed even when people are found not guilty or the case is dismissed. Generally speaking a judge is only supposed to order a record sealed if there is some "compelling governmental interest". The fact that the accused was innocent and was found to be not guilty and has no other criminal record is not enough for many judges. In 2009 we at Lewin & Lewin were successful in sealing the record of a woman charged with forcible rape of her adult boyfriend after the District Attorney dismissed the charges. In 2009 we were also successful in sealing the record of a woman who was charged with assault and battery on her husband in 2009 (that charge was dismissed) as well as another case the woman had dating back to 1999 (for assault and battery by dangerous weapon that was dismissed).

Sealing of criminal records involves either petitioning the Court where the case was prosecuted or petitioning directly to the Massachusetts Board of Probation.