Can a DUI be expunged in Massachusetts?

Whether a DUI can be cleared at all

An operating under the influence conviction can be sealed but not expunged. Massachusetts bars expungement outright for any offence in violation of M.G.L. c. 90, § 24, the operating-under-the-influence section. Sealing under M.G.L. c. 276, § 100A is different: it applies to court appearances and dispositions of all offences except violations of M.G.L. c. 140, §§ 121 to 131H and of c. 268 and c. 268A, so an operating-under-the-influence record is within it once the waiting period has run and the other conditions are met.

“No criminal record resulting from a disposition of the following offenses shall be eligible for expungement pursuant to section 100F, section 100G or section 100H: ... (9) any offense in violation of section 24 of chapter 90;”

The driving record is a separate record

This is the part most summaries leave out. A court can seal or expunge the criminal case and the licensing agency can still keep the DUI on the driver record, where it reaches insurers and counts as a prior offence if there is a second one.

Not cleared. The Registry of Motor Vehicles counts a person's whole driving history when it sets an operating-under-the-influence suspension or revocation. It states that it must consider a customer's entire driving history and will count all operating-under-the-influence convictions and Driver Alcohol Education Program assignments, including convictions from out of state and other jurisdictions, in deciding the number of convictions and the suspension period. Suspension periods for repeat convictions run up to lifetime.

“The RMV must consider a customer's entire driving history when calculating an OUI suspension/revocation. The RMV will count all of a customer's OUI convictions and Driver Alcohol Education Program assignments, including convictions occurring out-of-state and in other jurisdictions, when determining”

What else sits on that record: suspensions and points in Massachusetts.

How long the wait is, and from when

For a misdemeanor record the court appearance and disposition, including any period of incarceration or custody, must have occurred not less than three years before the request; for a felony record the period is seven years. The person must also not have been found guilty of any criminal offence in Massachusetts during that period, apart from motor vehicle offences whose penalty does not exceed a $50 fine, and must state on the form that they have no out-of-state or federal conviction in that period other than such motor vehicle offences.

“(1) 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 3 years before the request; (2) ... for any felony record to be sealed occurred not less than 7 years before the request;”

Automatic or by petition

Massachusetts has no automatic clearing of an operating-under-the-influence record. Sealing under M.G.L. c. 276, § 100A starts with a request the person makes to the commissioner of probation on a form the commissioner furnishes, signed under the penalties of perjury, and the commissioner must comply once the statutory conditions are satisfied.

“Any person 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 the file.”

Where it is filed, and what it costs

The request goes to the commissioner of probation on a form the commissioner furnishes, signed under the penalties of perjury. When the commissioner seals the records, the commissioner notifies the clerk and probation officer of the courts where the dispositions occurred, and they seal the same records in their files. In response to inquiries by authorised persons other than a law enforcement agency, a court or an appointing authority, the commissioner then reports that no record exists.

“When records of criminal appearances and criminal 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, of such sealing, and said”

Whether a cleared DUI still counts as a prior

A sealed record still reaches sentencing. Sealed records do not disqualify a person from public service and are not admissible in evidence or usable in court proceedings or before boards and commissions, except in imposing sentence in subsequent criminal proceedings and in certain family and abuse proceedings on motion. Separately, the Registry of Motor Vehicles counts every prior operating-under-the-influence conviction and Driver Alcohol Education Program assignment on the driving history, with no time limit stated.

“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”

The statute: M.G.L. c. 276, § 100A

“This section shall apply to court appearances and dispositions of all offenses; provided, however, that this section shall not apply in case of convictions for violations of sections 121 to 131H, inclusive, of chapter 140 or for violations of chapter 268 or chapter 268A, except for convictions for”