SENATE DOCKET, NO. 598        FILED ON: 1/16/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 725

The Commonwealth of Massachusetts

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PRESENTED BY:

James B. Eldridge

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act relative to the expungement of records of persons falsely accused and juveniles.

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PETITION OF:

SENATE DOCKET, NO. 598        FILED ON: 1/16/2013

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 725

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act relative to the expungement of records of persons falsely accused and juveniles.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1.  Chapter 258D of the General Laws, as appearing in the 2010 Official Edition, is hereby amended after section 7 by adding the following new section:-

Section 7A.  The court, upon finding that a person has been falsely accused, shall enter immediately an order directing the expungement of records maintained by the department of criminal justice information services, the probation department, and the sex offender registry.  Such finding and subsequent order shall be made for any person falsely accused because of an error in identification, because of intentionally false statements that caused fraud on the court, or because of negligence on the part of the police and court staff in initiating a complaint. 

The court shall also order the expungement of records that directly pertain to a false accusation that are in the care, custody, and control of any other state, municipal or local departments, agencies, commissions, or committees, including law enforcement agencies.  Such records shall include, but not be limited to, arrest records and district attorneys’ files.

Any order to expunge entered by the court shall provide that, in any employment application, the person may answer “no record” as to any charges expunged pursuant to this section in response to an inquiry regarding prior felony arrests, court appearances or criminal convictions.

The charges and convictions expunged shall not operate to disqualify a person in any examination, appointment or application for public employment in the service of the commonwealth or any other political subdivision thereof, nor shall such charges and convictions be used against a person in any way in any court proceedings or hearings before any court, board or commission to which he is a party to the proceedings.

For the purpose of this chapter the words, expunge, expunged, or expungement, shall be mean permanent erasure or destruction.

SECTION 2.  Section 100B of chapter 276 of the General Laws, as so appearing, is hereby amended by adding at the end thereof the following:-

Notwithstanding the provisions of section 100A, any person having been adjudicated a youthful offender as prescribed by section 58 of chapter 119 and having a record of criminal court appearances and dispositions in the commonwealth on file with the office of the commissioner of probation may, on a form furnished by the commissioner and signed under the penalties of perjury, request that the commissioner seal such record.

The commissioner shall comply with such request provided: 1.) that said person’s court appearance and court disposition records, including termination of court supervision, probation, parole, or sentence, the records for which are to be sealed, terminated not less than five years preceding such request; 2.) that said person has not been adjudicated delinquent or found guilty of any criminal offense within the commonwealth within five years preceding such request, except for a motor vehicle offense in which the penalty does not exceed a fine of fifty dollars; and 3.) said form includes a statement by the petitioner that he has not been adjudicated delinquent or found guilty of any criminal offense in any other state, U.S. possession, or in a court of federal jurisdiction, except motor vehicle offenses as aforesaid, within the preceding five years.

When records of youthful offender appearances and dispositions are sealed by the commissioner in his files, he shall notify forthwith the clerk and the probation officer of the courts in which the convictions or dispositions have occurred, or other entries have been made, and the department of youth services, if necessary, of such sealing, and said clerks, probation officers, and department of youth services shall each seal records of the same proceedings in their files.

Such sealed records of a person shall not operate to disqualify a person in any future examination, appointment, or application for public service under the government of the commonwealth or of any political subdivision thereof; nor shall such sealed records be admissible in evidence or used in any way in any court proceedings or hearings before any boards of commissioners, except in imposing sentence for subsequent offenses in delinquency or criminal proceedings.

Notwithstanding any other provision to the contrary, the commissioner shall report such sealed record to inquiring police and court agencies only as “sealed youthful offender record over five years old” and to other authorized persons who may inquire as “no record.” The information contained in said sealed youthful offender record shall be made available to a judge or probation officer who affirms that such person, whose record has been sealed, has been adjudicated a delinquent or has pleaded guilty or has been found guilty of and is awaiting sentence for a crime committed subsequent to sealing of such record. Said information shall be used only for the purpose of consideration in imposing sentence.

An applicant for employment with a sealed record on file with the commissioner of probation may answer “no record” to an inquiry herein relative to prior arrests or criminal court appearances.

SECTION 3.  Said chapter 276, as so appearing, is hereby further amended by inserting after section 100C the following new section:-

Section 100D.  A record sealed by the commissioner of probation pursuant to section 100B of this chapter shall be expunged by the commissioner five years from the date of such sealing.  The record of any person who has not petitioned to seal his record, but whose record is determined by said commissioner to be eligible for sealing shall be expunged 10 years from the date of such person’s eighteenth birthday.

Once the commissioner expunges the records within his possession, he shall forthwith notify the clerk and probation officer of the courts in which the adjudications or dispositions occurred, or other entries have been made, and the department of youth services of such expungement, and said clerks, probation officers, and department of youth services shall each expunge such records from their files.

In any application for employment, a person whose records have been expunged pursuant to this section may answer “no record” in response to any inquiry regarding prior arrests, delinquency appearances, delinquency adjudications, or delinquency dispositions that were contained in such expunged record.

The charges, adjudications, and dispositions expunged shall not operate to disqualify such person in any examination, appointment, or application for public employment in the service of the commonwealth or any other subdivision thereof, nor shall such charges, adjudications, or dispositions be used against such person in anyway in any court proceeding or hearing before any court, board, or commission to which the person is a party to the proceeding.

For the purpose of this chapter the words, expunge, expunged, or expungement, shall mean permanent erasure or destruction.