Attorney Benjamin Urbelis – Implications of new criminal record law

On May 4, an amendment to G.L.c. 276, §100A will significantly relax the requirements for sealing a criminal record.

From trivial poor choices to first-degree felonies, everyone makes mistakes and has regrets. But it is only with time for reflection, along with opportunity, that people can grow and better themselves.

The amendment will provide second-chance opportunities to many who had previously counted themselves out.

Highlights of new law

Under the current law, a person convicted of a misdemeanor must wait at least 10 years from any misdemeanor conviction, all court supervision, probation and the completion of any sentence before his record can be sealed upon request.

A felony conviction requires a 15-year waiting period from all such court contact.

And although they do not count as criminal convictions, cases that have been continued without a finding — or CWOF’ed — and eventually dismissed remain part of all Criminal Offender Record Information.

As of May 4, the required waiting period to seal a misdemeanor conviction will be cut in half, to five years, and a felony conviction may be sealed after 10 years.

Additionally, under the new amendment, the waiting period begins from either the time of conviction or release from incarceration; probation no longer tolls the start of the waiting period.

That is a significant advantage for anyone seeking to seal his record after serving a lengthy probation sentence.

For example, if an April 2007 misdemeanor conviction resulted in a five-year term of probation, under the current law, the person would have to wait until 2022 before requesting to seal the record (five years of probation from date of conviction, plus applicable waiting period). Now, on May 4, the person can walk into court and have his misdemeanor conviction sealed that day.

Cases that are CWOF’ed are usually done so for the purpose of avoiding a criminal conviction for first-time offenders. It requires the defendant to admit to sufficient facts for a finding of guilty, and in exchange the case will be dismissed upon the completion of the court’s requirements, which usually includes a term of probation.

Serious charges are statutorily prohibited from being CWOF’ed, so the offenses that are afforded this disposition are usually misdemeanors.

While a CWOF is not a conviction, thus allowing those with a CWOF on their record to truthfully answer “no” when asked if they have ever been convicted of a crime, it currently appears on all CORI checks.

It seems counterintuitive that the purpose of pleading to a CWOF is to have the case dismissed, yet it remains part of the criminal record, and anyone performing a CORI check will still see that the person admitted to the offense.

As of May 4, that will no longer be true. Under the new law, cases that have been CWOF’ed will not appear on standard CORI searches, and there is no required waiting period before a person can motion the court to seal any case that was CWOF’ed.

Protecting the public: exceptions to sealing

The amended law may cause initial concern among the general public, stirring up visions of convicted felons working in law enforcement and sex offenders teaching our children.

If I thought the new amendment had the potential for such unintended consequences, I would be outraged as well. But even with the amendment to §100A, the safeguards and exceptions remain in place. Crimes against public justice, such as perjury, escape from prison, resisting arrest and public official corruption, as well as firearms offenses, are excluded from being sealed under G.L.c. 276, §100A.

Sex offenses require a 15-year waiting period from any and all court supervision and probation before such records may be sealed, and Level 2 and 3 sex offenders are prohibited from having any sex offenses sealed.

Law enforcement may still access and consider all cases that were CWOF’ed when charging and prosecuting repeat offenders.

Further, the statute provides for sealed records to be “unsealed” in specific circumstances.

Records may be unsealed to be used as evidence in custody or child visitation hearings, abuse in restraining order proceedings, and for sentencing in subsequent criminal proceedings.

Under G.L.c. 6, §172, certain requestors of CORI information are provided access to sealed records, including firearm-licensing authorities, foster home agencies, law enforcement and organizations working with children. So the entities that protect the public and are entrusted with the care of our children still have unfettered access to all criminal record information, even sealed records.

In fact, G.L.c. 71, §38R requires school districts to conduct criminal background checks on any employees, contractors and volunteers who may have direct and unmonitored contact with children.

The affirmative, mandatory CORI checks should promote public confidence and reinforce the notion that our children’s safety comes above all else.

Who benefits?

With the statutory exceptions to record sealing, we can alleviate the fear of having the most violent and predatory criminal offenders gaining access to firearms and employment that might jeopardize public safety.

The amendment to G.L.c. 276, §100A was not intended for, and still protects us from, such results. The beneficiaries of the amendment are otherwise law-abiding people, and their families, whose lives have been stifled by convictions from several years prior.

While a person with a criminal record will still be prevented from pursuing certain jobs and careers, there is no reason to bar someone, several years after a minor conviction, from finding a job and finally becoming a contributing member of society.

A person with one minor misdemeanor conviction should not have to wait as long as a person convicted of a felony before applying to seal his record, and the new law still recognizes that premise.

In Massachusetts, most new criminal cases are brought against defendants who already have several prior arrests or convictions on their record. This amendment was not drafted to protect the career criminal.

It was drafted to allow the 23-year-old college graduate to start a career despite the disorderly conduct conviction he received in high school, at the age of 17.

It allows the 35-year-old professional with no criminal record other than a CWOF for a minor driving offense to rest assured that the charge will no longer cause embarrassment by appearing on a CORI check.

It allows someone who was convicted of a violent offense 20 years ago, and who subsequently served 10 years in prison as a 20-year-old, from now obtaining employment in order to feed his family. After 20 years to reflect on his mistake and grow as a person, this amendment could provide hope for a second chance, where he might otherwise have given up.

This man is grateful for his chance at a fresh start, and so is his family.

Attorney Ben Urbelis – Impact of Statewide Ban on Texting While Driving

As the statewide ban on texting while driving goes into effect Thursday, many officers of the law are calling it another “unenforceable law” on the books. Police will need to determine if drivers are illegally responding to their BlackBerry’s blipping red light, or just legally dialing.

“It’s difficult for an officer to know what a person is doing in the car,” said Chief Wayne Sampson of the Massachusetts Chiefs of Police Association. “There’s going to be a real problem with enforcement here.”

Boston attorney Ben Urbelis said it will be difficult for the state to prove Attorney Benjamin Urbelissomeone was really texting, because subpoenaed cell records will probably only come into play in cases involving fatalities.

“If a person cited for texting while driving appeals the ticket and argues that he or she was actually just picking up the phone or dialing a number,” Urbelis said, “the police probably won’t have any real evidence to say otherwise.” There are, however, several signs that a driver may be texting and driving, such as driving slowly and braking erratically.

“There are some cases that will appear more clear cut than others, as with any traffic violation law,” Registrar Rachel Kaprielian admitted. “This is not different than 100 other moving violation laws.”

Attorney Ben Urbelis Law – Wairi not guilty of production or attempted production of child pornography

A federal jury of 10 men and two women returned a verdict of not guilty this morning on three counts of production of child pornography and attempted production of child pornography in the case of Josh Wairi, the Graham & Parks school teacher arrested in April 2014.

The jury found Wairi guilty of possession and transportation of child pornography – charges he admitted to – after deliberating Friday afternoon and a little over an hour this morning. They had Monday and the weekend off and reached a verdict at 10:30 a.m.

The result is the best possible outcome for Wairi and his defense team, J. W. Carney and Benjamin Urbelis. Defense lawyers argued that Wairi’s filming of naked fifth- and sixth-grade students in the shower at a 2011 school class trip to Nature’s Classroom in Yarmouth Port, Mass., did not qualify as child pornography because while the videos were reprehensible and illegal, they were not sexually explicit and therefore did not qualify as child pornography.

The jury also found Wairi not guilty on attempted production of child pornography, because he recorded what he wanted to record – to be found guilty, the jury would have to have found he wanted more than what he got. Wairi also recorded video with a cellphone camera in the locker room of the Kennedy Pool in Somerville. At the time Wairi was a school teacher at the Healey school in Somerville.

Wairi’s videos were focused primarily on the midsection of the boys he recorded. The children were not readily identifiable in the videos that the government showed to the jury, and government witnesses said that the heads of children were cut off in the videos. “You could almost never see the head,” prosecutor Susanne Sullivan Jacobus said in her closing arguments to the jury Friday.

The government presented no evidence that Wairi shared or uploaded he videos he created. The basis of Wairi’s transportation of child pornography conviction was the sharing of images he had obtained from other sources, including a Russian image-trading website.

Judge William G. Young set Wairi’s sentencing hearing for 2 p.m. July 29.

Young will also hold a hearing at 2 p.m. May 15 to consider the government’s request for a harsher sentence because Wairi was a caretaker of children; because the pornography Wairi possessed involved some minors under the age of 12; and because that pornography may have portrayed “sadistic or masochistic conduct or other depictions of violence.”