Bill S.957

SENATE DOCKET, NO. 1776 FILED ON: 2/18/2021

SENATE . . . . . . . . . . . . . . No. 957

By Ms. Comerford, a petition (accompanied by bill, Senate, No. 957) of Joanne M. Comerford, Susan L. Moran and Elizabeth A. Malia for legislation to empower individuals affected by substance abuse to rebuild their lives. The Judiciary.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act empowering individuals affected by substance abuse to rebuild their lives.

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. Section 34 of chapter 94C of the General Laws is hereby amended by inserting after the first paragraph the following three paragraphs:-

If any charge for violation of certain offenses related to controlled substances, as listed in the third paragraph of this section, is dismissed, or a nolle prosequi or not guilty finding is entered, the court shall, upon entry of such a disposition, order that all official records relating to the arrest, indictment, conviction, probation, continuance or discharge, shall be sealed, unless the defendant objects.

Notwithstanding the provisions of this section and section 100A of chapter 276, unless the defendant objects, the commissioner of probation shall also seal, within 90 days, records of criminal court appearances and dispositions in the commonwealth on file with the commissioner of probation for any offense involving controlled substances, as defined in chapter 94C, regardless of any fines or fees owed to the court or commonwealth, provided that: (1) the person successfully completed a drug treatment program approved by the court or licensed by the commonwealth; or (2) the person's court appearance and court disposition records, including any period of incarceration or custody for any misdemeanor record to be sealed occurred not less than 1 year before sealing date; or (3) the person's court appearance and court disposition records, including any period of incarceration or custody for any felony record to be sealed occurred not less than 3 years before the sealing date; and (4) the offense involving any controlled substance was for:

(i) Any offense defined in sections 32, 32A, 32B, 32C, 32D, subsections (b) and (c) of section 32E, 32F, 32G, subsections (a) and (b) of section 32I, 32K, 33, 34, and 37 of chapter 94C, with the exception of any offenses involving controlled substances defined in paragraph (d) of class A of section 31 of chapter 94C.

(ii) Violations of section 32J of chapter 94C with regard to any of the provisions of sections 32, 32A, 32B, 32C, 32D, 32E, 32F or 32I of chapter 94C, with the exception of violations of provisions of subsection (a) of section 32E and subsection (c) of section 32I of chapter 94C; and any offenses involving controlled substances defined in paragraph (d) of class A of section 31 of chapter 94C.

(iii) Conspiracy to commit any of the offenses defined in sections 32, 32A, 32B, 32C, 32D, 32E, 32F or 32I of chapter 94C, with the exception of offenses defined in subsection (a) of section 32E and subsection (c) of section 32I of chapter 94C; and any offenses involving controlled substances defined in paragraph (d) of class A of section 31 of chapter 94C, as defined by section 40 of chapter 94C.

Multiple offenses arising out of the same incident shall be considered a single offense for the purposes of this section and shall be sealed along with the drug related offense, provided that the other offense or offenses arising out of the same incident as the eligible drug offense or offenses resulted in the same or a lesser period of incarceration, if any, than the eligible drug offense.

SECTION 2. Section 44 of chapter 94C of the General Laws is hereby amended by striking out the first paragraph and inserting in place thereof the following four paragraphs:-

Records that are sealed under section 34 shall not operate to disqualify a person in any examination, appointment or application for public service in the service 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 or commissions, except in imposing sentence in subsequent criminal proceedings; provided however, that in any proceedings under sections 1 to 39I, inclusive, of chapter 119, sections 2 to 5, inclusive, of chapter 201, chapters 208, 209, 209A, 209B, 209C, or sections 1 to 11A, inclusive, of chapter 210, a party having reasonable cause to believe that information in a sealed criminal record of another party may be relevant to (1) an issue of custody or visitation of a child, (2) abuse, as defined in section 1 of chapter 209A or (3) the safety of any person may upon motion seek to introduce the sealed record into evidence. The judge shall first review such records in camera and determine those records that are potentially relevant and admissible. The judge shall then conduct a closed hearing on the admissibility of those records determined to be potentially admissible; provided, however, that such records shall not be discussed in open court and, if admitted, shall be impounded and made available only to the parties, their attorneys and court personnel who have a demonstrated need to receive them.

The commissioner or the clerk of courts in any district or superior court or the Boston municipal court, in response to inquiries by authorized persons other than any law enforcement agency or any court, shall in the case of a sealed record report that no record exists.

An applicant 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. 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.

A sealing pursuant to this section will not preclude the court’s jurisdiction over any subsequently filed motion to amend the record, post-conviction relief motion or petition, or any other future collateral attack on a sealed conviction.

SECTION 3. Section 100B of chapter 276 of the General Laws is hereby amended by inserting after the first paragraph the following two paragraphs:-

Notwithstanding the provisions of this section, unless the defendant objects, the juvenile court shall enter an order that the commissioner of probation shall seal records of juvenile court appearances and dispositions on file with the commissioner of probation within 90 days of a dismissal, nolle prosequi, or other non-adjudication for certain offenses related to controlled substances, as defined in chapter 94C, or if such an offense ends in an adjudication, at the time of the adjudication if the person successfully completed a drug treatment program approved by the court or licensed by the commonwealth, or after the adjudication upon documentation of the person’s successful completion of such a program to the court unless the records have already been sealed, or after the adjudication after a period of 1 year, provided that said person has not been adjudicated delinquent or found guilty of any criminal offense within the commonwealth in the past year. Multiple offenses arising out of the same incident shall be considered a single offense for the purposes of this section and shall be sealed along with the drug related offense, provided that the other offense or offenses arising out of the same incident as the eligible drug offense or offenses resulted in the same or a lesser period of incarceration, if any, than the eligible drug offense.

Offenses eligible for sealing for the purposes of this section shall be:

SECTION 4. The first paragraph of section 100C of chapter 276 of the General Laws is hereby amended by inserting after the first sentence the following sentence:- The offense or offenses shall be sealed forthwith without the defendant having to file a petition or other request with the court.

SECTION 5. Chapter 276 of the General Laws is hereby amended by striking out section 100O and inserting in place thereof the following section:-

Section 100O. (a) A petition for an expungement, any records related to a petition for an expungement, records related to judicial proceedings required to hear the petition for an expungement or an order of expungement pursuant to section 100F, section 100G, section 100H, section 100K, or subsections (b) to (e), inclusive, of this section shall not be a public record. Any information obtained by a county, municipal or state employee acting in their official capacity and related to a petition for or order for an expungement shall not be a public record as defined by clause twenty-sixth of section 7 of chapter 4 and shall be confidential information. Within 60 days of ordering an expungement pursuant to section 100F, section 100G, section 100H, section 100K or subsections (b) to (e), inclusive, of this section the court and the commissioner shall expunge all records of the petition, the order and any related proceedings within their care, custody or control.

(b) Notwithstanding the provisions in this chapter for filing a petition for expungement, or any other provision to the contrary, a person with a record of criminal court appearances, dispositions, or convictions on file with the commissioner of probation shall be eligible to expunge such record for certain offenses involving controlled substances, as defined in chapter 94C, with the court that handled the petitioner’s original case related to certain offenses involving controlled substances regardless of any fines or fees owed to the court or the commonwealth, provided that (1) 5 or more years has passed since the date of final disposition of criminal proceedings against such person, including the termination of any period of custody or incarceration, whichever is later; (2) the person has not been convicted of a crime arising out of a new incident since the original appearance, disposition, or conviction; and (3) the record is the result of any of the following offenses involving controlled substances:

(c) Multiple offenses arising out of the same incident shall be considered a single offense for the purposes of this section and shall be eligible for expungement along with the drug related offense, provided that the other offense or offenses arising out of the same incident as the eligible drug offense or offenses resulted in the same or a lesser period of incarceration, if any, than the eligible drug offense.

(d) In making a determination regarding a person’s petition for expungement pursuant to this provision, a rebuttable presumption shall apply that expungement is in the interests of justice and that the record should be expunged if the person’s petition meets the statutory criteria for expungement pursuant to this section. Prior to entering an order of expungement pursuant to this provision, the court shall hold a hearing if requested by the petitioner or the district attorney. Upon an order of expungement, the court shall enter written findings of fact.

(e) The court shall immediately forward an order for expungement pursuant to this provision to the clerk of the court where the record was created, to the commissioner of probation and to the commissioner of criminal justice information services appointed pursuant to section 167A of chapter 6.

(f) An expungement pursuant to this section will not preclude the court’s jurisdiction over any subsequently filed motion to amend the record, post-conviction relief motion or petition, or any other future collateral attack on a sealed conviction.

SECTION 6. Chapter 276 of the General Laws is hereby amended by striking out section 100Q and inserting in place thereof the following section:-

Section 100Q. No person shall make records sealed pursuant to section 100A or section 100B or expunged pursuant to section 100C, 100F, section 100G, section 100H, section 100K or subsections (a) to (e), inclusive of section 100O available for inspection in any form by any person.

SECTION 7. The department of public health shall compile a report on the number of licensed drug treatment programs within each county and within each city and town in the commonwealth. For each program, the report shall include the services provided by each program, the total number of treatment beds and non-residential treatment positions, the average number of available beds and non-residential treatment openings during the past year, and an analysis of the demand and the capacity of the commonwealth's drug treatment infrastructure, and a plan to address any shortfalls. The report shall be compiled and submitted to the clerks of the senate and house of representatives, the joint committee on public health, and the joint committee on mental health, substance abuse, and recovery not later than January 1, 2022.

Name:	District/Address:
Joanne M. Comerford	Hampshire, Franklin and Worcester
Susan L. Moran	Plymouth and Barnstable	3/15/2021
Elizabeth A. Malia	11th Suffolk	3/16/2021
Adam G. Hinds	Berkshire, Hampshire, Franklin and Hampden	4/20/2021