LTC Question - Paraphernalia/Possession

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I'm going for my LTC interview tomorrow in MA and am unsure how to answer 2 questions. Back in 2009, I was charged with possession (less than a 1/4 ounce) and possession of drug paraphernalia in the state of CT. It was so minor to me that I don't remember the exact level of the charge... given that it was the only offense I had, I was given a day of community service and was told that so long as nothing else happened over the next year..... it would disappear off my record.

The 2 questions are regarding appearing in court as a defendant and convictions.
Any insight/suggestions?

Thanks!
~spiderlily
 
On the Massachusetts LTC Application, there is a really key question.

"Have you ever been arrested or appeared in any court as a defendant for any criminal offense?"

In 2011, the Connecticut legislature passed PA 11-71, which decriminalized possession of less than 1/2 ounce of marijuana (making that an infraction) and possession marijuana paraphernalia (making that an infraction too) [other paraphernalia are still a C misdemeanor].

Prior to 2011, possession of less than 1/2 ounce of marijuana was misdemeanor. Prior to 2011, all drug paraphernalia, including marijuana paraphernalia, was covered by a class c misdemeanor charge.

In Connecticut, when the criminal case against an individual results in a non-conviction (nolle, dismissal, not guilty verdict) the offender is allowed to claim, under oath, that they have never been arrested [I only say this, because it is not uncommon for people to recall hearing that the case would be erased]. Even though Connecticut has laws that restrict the courts' and police departments' ability to release records (or acknowledge) non-convictions (per a certain timetable). In fact, in Connecticut- following a non-conviction, a criminal defendant even has the right to request or request the destruction of police and court records related to the case. Unfortunately, Massachusetts is NOT encumbered by Connecticut's erasure statute. They want to know about criminal arrests and appearances, EVEN that which did NOT result in conviction.

An important consideration is how a case was resolved/disposed of. There is another key question relating to convictions.

Did the defendant participate in one of the diversionary programs (e.g. Accelerated Rehabilitation, Community Service Labor Program, Drug Education Program, or Treatment of Drug or Alcohol Dependent Offenders in Lieu of Prosecution)? If so, did (s)he earn a dismissal?

Did the State's Attorney offer the defendant a nolle?

Did the defendant participate in a Community Court (e.g. Hartford Community Court)? If so, did (s)he earn a dismissal?
(Community court often involves a conditional guilty plea, community service, and eventually a dismissal)

Did a court enter a judgement of guilt (resulting from a guilty plea, no contest plea, or guilty verdict at trial) against the defendant and sentence him/her to (an unconditional discharge, conditional discharge, jail, a suspended jail, probation, probation with special conditions, or some combination)?

This post is intended to be for general information only. I do not seek to guide anybody with how to fill out their LTC application, represent themselves before any court or board, advise anybody about how to explain their situation to LE,a court, God, etc... If you want that kind of advice, contact a lawyer who is qualified to give legal advice....which I strongly recommend for the OP. Please do not contact me. I am not a lawyer and I can NOT represent you or give you that advice.
 
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I'm going for my LTC interview tomorrow in MA and am unsure how to answer 2 questions. Back in 2009, I was charged with possession (less than a 1/4 ounce) and possession of drug paraphernalia in the state of CT. It was so minor to me that I don't remember the exact level of the charge... given that it was the only offense I had, I was given a day of community service and was told that so long as nothing else happened over the next year..... it would disappear off my record.

The 2 questions are regarding appearing in court as a defendant and convictions.
Any insight/suggestions?

Thanks!
~spiderlily

Nothing disappears off of your record unless you have ridiculous juice. If it was a minor infraction, it will be dealt with accordingly. You absolutely want to disclose anything and everything when it comes to your MA LTC.
 
I'm going for my LTC interview tomorrow in MA and am unsure how to answer 2 questions. Back in 2009, I was charged with possession (less than a 1/4 ounce) and possession of drug paraphernalia in the state of CT. It was so minor to me that I don't remember the exact level of the charge... given that it was the only offense I had, I was given a day of community service and was told that so long as nothing else happened over the next year..... it would disappear off my record.

The 2 questions are regarding appearing in court as a defendant and convictions.
Any insight/suggestions?

Thanks!
~spiderlily

Comm2A has been fighting denials due to out of state marijuana possession convictions. The actual disposition of your charges is important. If you are denied, call Comm2A
 
Comm2A has been SUCCESSFULLY fighting denials due to out of state marijuana possession convictions. The actual disposition of your charges is important. If you are denied, call Comm2A

FIFY

For the OP's benefit . . . Comm2A has succeeded on each case. Sadly Comm2A has to bring a case forward for each and every person affected as the state stubbornly refuses to change their law/policies to reflect having lost in Federal Court! The good news is that there is no cost to the plaintiff and Comm2A gets reimbursed their legal fees by the town/state (taxpayers) for each case.
 
FIFY

For the OP's benefit . . . Comm2A has succeeded on each case. Sadly Comm2A has to bring a case forward for each and every person affected as the state stubbornly refuses to change their law/policies to reflect having lost in Federal Court! The good news is that there is no cost to the plaintiff and Comm2A gets reimbursed their legal fees by the town/state (taxpayers) for each case.

Celona is still pending
 
In Connecticut, when the criminal case against an individual results in a non-conviction (nolle, dismissal, not guilty verdict) the offender is allowed to claim, under oath, that they have never been arrested [I only say this, because it is not uncommon for people to recall hearing that the case would be erased]. Even though Connecticut has laws that restrict the courts' and police departments' ability to release records (or acknowledge) non-convictions (per a certain timetable). In fact, in Connecticut- following a non-conviction, a criminal defendant even has the right to request or request the destruction of police and court records related to the case. Unfortunately, Massachusetts is NOT encumbered by Connecticut's erasure statute. They want to know about criminal arrests and appearances, EVEN that which did NOT result in conviction.

An important consideration is how a case was resolved/disposed of. There is another key question relating to convictions. .

I faced a similar thing when I moved to MA from CT. I was arrested for breach of peace in college. The arrest was based on untrue testimony from the arresting officer.

The judge dismissed the charges and told me "if anyone ever asks if you were ever arrested, you can lawfully say NO. THIS DIDN'T HAPPEN!!!".

This is consistent with CT general statute 52-142a
https://www.cga.ct.gov/2011/pub/chap961a.htm

By law ALL RECORDS associated with the arrest, prosecution and investigation must be removed.

I wanted to be safe when I applied in my (green) town in MA. I knew it wouldn't be a problem so I told the licensing officer anyway.
When they ran the search on me, the arrest did NOT come up. I've been told that there was some civil action against a municipal PD that failed to cleanse all records of an arrest that lead to a 6 figure settlement against the municipality. So most agencies are pretty rigorous to purge this.

But I can't make any promises.

One important thing to do is to figure out what you were actually CONVICTED of.

To do that, go here. You can look up your name and see what your actual conviction was.

http://www.jud2.ct.gov/crdockets/SearchByDefDisp.aspx

Don
 
dcmdon...
Thank you! That was a great help.... Altho, I already filled out the application answering "yes" to both questions and my name doesn't show on the lists.
Hrmmmm..... to fill out a new one or not? I think I'll just explain in the interview instead.

Thank you, again!
~spiderlily
 
Well, people like to take the easy way out. Then they come back here and whine to us when the CLEO caught them omitting stuff on the app because some birdbrain assured them 20 years ago that "their record was gonna be sealed" and it really wasn't. [rofl]

People get their junk stomped by CLEOs in MA all the time for juvie crap. Get your paperwork in order (including court paperwork of dispositions) then apply. It's a lot easier to deal with issues up front than it is to get rejected and all the BS that goes with it.

-Mike
 
drgrant....
Hence the reason I thought I'd ask the masses first.... see if anyone else had "been there, done that". Suppose I'll just have to see how it goes...

~spiderlily
 
drgrant....
Hence the reason I thought I'd ask the masses first.... see if anyone else had "been there, done that". Suppose I'll just have to see how it goes...

~spiderlily

My advice, get your paperwork from the court and at least fully document your appearance (and the disposition of the case) on the application before you apply. If you get rejected at least you'll already have all the legwork done when you go to get a lawyer or whatnot.

-Mike
 
you appeared in court, right? Then what's the confusion about answering, under penalty of perjury, if you ever appeared in court?

Because CT law says that if you are acquitted or charges are dropped, it didn't happen. His offense happened in CT.

Which is why he needs to see if he was actually convicted of anything using the link I provided in an earlier post.
 
Because CT law says that if you are acquitted or charges are dropped, it didn't happen. His offense happened in CT.

"I was given a day of community service"

That would be a sentence, so he was neither acquitted nor charges dropped. And he did appear in court as a defendant so the question is quite unambiguous as is the answer.
 
FIFY

For the OP's benefit . . . Comm2A has succeeded on each case. Sadly Comm2A has to bring a case forward for each and every person affected as the state stubbornly refuses to change their law/policies to reflect having lost in Federal Court! The good news is that there is no cost to the plaintiff and Comm2A gets reimbursed their legal fees by the town/state (taxpayers) for each case.
Let's remember however, the courts may see an out of state possession conviction from 2009 as quite a bit different than one from 40 years ago.
 
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In some cases, dispositions with expungement give you the legal right to answer "no" to "have you been arrested / in court / etc.". It's called "legal fiction", and a MA declaration that another stater's legal fiction does not have effect in MA is, in general, false. An attorney arguing this such a case would use the "full faith and credit to acts of all states" provision in that pesky constitution.

That being said, this is tricky to apply without legal coun$el.

1. You need to be certain that "legal fiction" applies to your case.

2. You need to know if the records actually have been expunged.

3. You need a retainer on hand (figure $10,000 or so) to initiate a federal case if the local PD finds out about the expunged charge and denies you for untruthfullness on the application. You also need to be prepared to wait a year or two until your case is heard. The legal research will be non-trivial, as your attorney will need to convince the court that a legal fiction exists in regards to your specific case, and that the state of MA is obligated to abide by it.

Comm2A is currently litigating a case (Celona v. Scott) in which the applicant has an expunged conviction. The applicant disclosed this conviction, and the issuing authority is taking the position that an expungement does not expunge the conviction for the purpose of LTC ineligibility. This is a federal case, so we have a chance of winning, and when we do, we get to give the PD a 42 USC 1983 spanking.

In any case, an office consult with someone like Langer, Foley, Guida, MacNutt, etc. would be in order.
 
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Does CT erase the record from the Interstate Identification Index?

If the arrest resulted in a non-conviction, the Connecticut SPBI should check come back clear. So should a local check.

If the information re the arrest was sent to the FBI, my understanding is that they don't remove it.

The Connecticut erasure statute is intended to put the former defendant back into the same position (s)he was in prior to the arrest, as though that did not even happen.

Sec. 54-142a. (Formerly Sec. 54-90). Erasure of criminal records. (a) Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state's attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken. Nothing in this subsection shall require the erasure of any record pertaining to a charge for which the defendant was found not guilty by reason of mental disease or defect or guilty but not criminally responsible by reason of mental disease or defect.

(b) Whenever in any criminal case prior to October 1, 1969, the accused, by a final judgment, was found not guilty of the charge or the charge was dismissed, all police and court records and records of the state's or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased by operation of law and the clerk or any person charged with the retention and control of such records shall not disclose to anyone their existence or any information pertaining to any charge so erased; provided nothing in this subsection shall prohibit the arrested person or any one of his heirs from filing a petition for erasure with the court granting such not guilty judgment or dismissal, or, where the matter had been before a municipal court, a trial justice, the Circuit Court or the Court of Common Pleas with the records center of the Judicial Department and thereupon all police and court records and records of the state's attorney, prosecuting attorney or prosecuting grand juror pertaining to such charge shall be erased. Nothing in this subsection shall require the erasure of any record pertaining to a charge for which the defendant was found not guilty by reason of mental disease or defect.

(c) (1) Whenever any charge in a criminal case has been nolled in the Superior Court, or in the Court of Common Pleas, if at least thirteen months have elapsed since such nolle, all police and court records and records of the state's or prosecuting attorney or the prosecuting grand juror pertaining to such charge shall be erased, except that in cases of nolles entered in the Superior Court, Court of Common Pleas, Circuit Court, municipal court or by a justice of the peace prior to April 1, 1972, such records shall be deemed erased by operation of law and the clerk or the person charged with the retention and control of such records shall not disclose to anyone their existence or any information pertaining to any charge so erased, provided nothing in this subsection shall prohibit the arrested person or any one of his heirs from filing a petition to the court or to the records center of the Judicial Department, as the case may be, to have such records erased, in which case such records shall be erased.

(2) Whenever any charge in a criminal case has been continued at the request of the prosecuting attorney, and a period of thirteen months has elapsed since the granting of such continuance during which period there has been no prosecution or other disposition of the matter, the charge shall be construed to have been nolled as of the date of termination of such thirteen-month period and such erasure may thereafter be effected or a petition filed therefor, as the case may be, as provided in this subsection for nolled cases.

(d) (1) Whenever prior to October 1, 1974, any person who has been convicted of an offense in any court of this state has received an absolute pardon for such offense, such person or any one of his heirs may, at any time subsequent to such pardon, file a petition with the superior court at the location in which such conviction was effected, or with the superior court at the location having custody of the records of such conviction or with the records center of the Judicial Department if such conviction was in the Court of Common Pleas, Circuit Court, municipal court or by a trial justice court, for an order of erasure, and the Superior Court or records center of the Judicial Department shall direct all police and court records and records of the state's or prosecuting attorney pertaining to such case to be erased.

(2) Whenever such absolute pardon was received on or after October 1, 1974, such records shall be erased.

(e) (1) The clerk of the court or any person charged with retention and control of such records in the records center of the Judicial Department or any law enforcement agency having information contained in such erased records shall not disclose to anyone, except the subject of the record, upon submission pursuant to guidelines prescribed by the Office of the Chief Court Administrator of satisfactory proof of the subject's identity, information pertaining to any charge erased under any provision of this section and such clerk or person charged with the retention and control of such records shall forward a notice of such erasure to any law enforcement agency to which he knows information concerning the arrest has been disseminated and such disseminated information shall be erased from the records of such law enforcement agency. Such clerk or such person, as the case may be, shall provide adequate security measures to safeguard against unauthorized access to or dissemination of such records or upon the request of the accused cause the actual physical destruction of such records, except that such clerk or such person shall not cause the actual physical destruction of such records until three years have elapsed from the date of the final disposition of the criminal case to which such records pertain.

(2) No fee shall be charged in any court with respect to any petition under this section.

(3) Any person who shall have been the subject of such an erasure shall be deemed to have never been arrested within the meaning of the general statutes with respect to the proceedings so erased and may so swear under oath.

(f) Upon motion properly brought, the court or a judge thereof, if such court is not in session, may order disclosure of such records (1) to a defendant in an action for false arrest arising out of the proceedings so erased, or (2) to the prosecuting attorney and defense counsel in connection with any perjury charges which the prosecutor alleges may have arisen from the testimony elicited during the trial. Such disclosure of such records is subject also to any records destruction program pursuant to which the records may have been destroyed. The jury charge in connection with erased offenses may be ordered by the judge for use by the judiciary, provided the names of the accused and the witnesses are omitted therefrom.

(g) The provisions of this section shall not apply to any police or court records or the records of any state's attorney or prosecuting attorney with respect to any information or indictment containing more than one count (1) while the criminal case is pending, or (2) when the criminal case is disposed of unless and until all counts are entitled to erasure in accordance with the provisions of this section, except that when the criminal case is disposed of, electronic records or portions of electronic records released to the public that reference a charge that would otherwise be entitled to erasure under this section shall be erased in accordance with the provisions of this section. Nothing in this section shall require the erasure of any information contained in the registry of protective orders established pursuant to section 51-5c. For the purposes of this subsection, "electronic record" means any police or court record or the record of any state's attorney or prosecuting attorney that is an electronic record, as defined in section 1-267, or a computer printout.

(h) For the purposes of this section, "court records" shall not include a record or transcript of the proceedings made or prepared by an official court reporter, assistant court reporter or monitor.

There have been instances in the past where people with Connecticut non-convictions have had difficulty in other states and with the federal government for not disclosing the arrest (e.g. military members/applicants, federal LE applicants, and defense industry employees failing to disclose the erased arrest on their SF-86, because of their belief that it was covered by the Connecticut erasure statute.)
 
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"I was given a day of community service"

That would be a sentence, so he was neither acquitted nor charges dropped. And he did appear in court as a defendant so the question is quite unambiguous as is the answer.

If you read my post on page 1, that's not necessarily true. There are several ways that people can earn dismissals.

Each of the diversionary programs that I referenced (as well as others that would not be applicable to drug charges) could include a community service element, typically combined with the requirement to behave for a period of time (the judge can make that anywhere from 1 day to 2 years). Dismissals resulting from diversionary programs count for 54-142a erasure purposes. Failing to successfully complete a pretrial diversion allows that case to go to trial at which the defendant can still be found not guilty. Unlike other states, Connecticut does not require one to plead guilty or stipulate to facts in order to get AR, DEP, or CSLP, etc... (unlike other diversions, which are exlusively pretrial interventions, Treatment of Drug Dependents can be granted after a guilty verdict/plea but before sentencing, which is when the judgement is entered).

Nolle Prosecqui is a Latin term meaning the prosecution stops. If a defendant accepts a nolle (when offered a nolle a criminal defendant usually has the option to accept the nolle, move for dismissal, or demand a trial), the state has the option to re-initiate prosecution for 13 months, subject to a tolling statute of limitations. While a State's Attorney can nolle a charge for just about any reason (In 14-227a cases the SA is required to present the reason for a nolle in open court) there are instances in which the State's Attorney will condition the nolle on some action by the defendant; such as not getting in further legal trouble, making a charitable contribution and/or restitution, performing community service, etc...(in effect using it as an ad hoc diversion).

Community Court is a special session of the Superior Court, which is intended to help people charged with nuisance crimes (there's a list of applicable offenses, e.g. Disorderly Conduct, Larceny 6th, etc....) in certain cities (and surrounding suburbs in the same GA) receive a consequence for their actions while remedying the underlying cause of the criminal behavior. Unlike at the GA court where it likely that a defendant charged who makes bond for a non-domestic charge will likely wait 7-10 days (not more than 14, IIRC, per court rules) for arraignment, Community Court referrals are supposed to be arraigned within 48 hours. Following an assessment process, defendants typically are offered a conditional plea- which if accepted results in restorative community service and/or other restorative tasks, meeting with social service representatives, etc...- and results in dismissal if conditions of the plea are adhered to (this result happens in 2/3 of cases). Defendants not accepting the conditional plea can plead not guilty and demand a trial or plead guilty and take the conviction, usually in exchange for a nominal consequence.

So, in closing, there are numerous ways in Connecticut that a defendant could receive a sanction (of sorts) and still experience a non-conviction.
 
Another thought that I was having-

If an individual did sustain a conviction, in Connecticut, for Possession of Less than 1/2 Ounce of Marijuana, the Connecticut Supreme Court recently ruled that such convicts can petition for erasure because of the 2011 decriminalization that I referenced in my 1st reply. If somebody were encumbered in some way by having an actual misdemeanor MJ conviction from before it was decriminalized to an infraction- it would be a good idea for them to get in touch with a Connecticut attorney to look into erasure.
 
The problem is that the question asks, "Have you ever....."

It does not ask about the outcome.

And, in Mass., which has different rules, if the appearance should show up (even if it is supposed to have disappeared, by whatever method), and you answer "no", it's a problem.

Fair? No. Reality? Yes.
 
The problem is that the question asks, "Have you ever....."

It does not ask about the outcome.


And, in Mass., which has different rules, if the appearance should show up (even if it is supposed to have disappeared, by whatever method), and you answer "no", it's a problem.

Fair? No. Reality? Yes.

Outcome would be relevant for the second (conviction) question and for license determination, particularly if an issuing authoity were to interpret it as a per-se disqualification.

Hence, my reason for mentioning erasure, if there is a conviction, is in the event that the conviction is interpreted as meeting the statutory discqualfication described in c. 140 s. 131 for persons convicted of crimes related to controlled substances. The statute includes, but is not limited to convictions relating to s. 94C. Even though Massachusetts has treated less than 1 ounce of marihuana as a civil infraction since 2008, marihuana is listed in c. 94C s. 31 as a Class D controlled substance and the pre-2011 marijuana misdemeanor from Connecticut is a criminal offense related to the possession of that substance.
 
The problem is that the question asks, "Have you ever....."

It does not ask about the outcome.

And, in Mass., which has different rules, if the appearance should show up (even if it is supposed to have disappeared, by whatever method), and you answer "no", it's a problem.

Fair? No. Reality? Yes
Under certain conditions, the doctrine of "legal fiction" allows a "No" answer to be legally truthful when it is factually incorrect.

As previously mentioned, applying legal fiction to MA LTC app question #10 is fraught with risks and potential problems.

Hence, my reason for mentioning erasure, if there is a conviction, is in the event that the conviction is interpreted as meeting the statutory discqualfication described in c. 140 s. 131 for persons convicted of crimes related to controlled substances. The statute includes, but is not limited to convictions relating to s. 94C. Even though Massachusetts has treated less than 1 ounce of marihuana as a civil infraction since 2008, marihuana is listed in c. 94C s. 31 as a Class D controlled substance and the pre-2011 marijuana misdemeanor from Connecticut is a criminal offense related to the possession of that substance.
Except that the federal courts have held that this is not a disqualifier in two cases - Wesson v. Fowler and Richmond V. Peraino both held that an out of state MJ conviction is not a MA disqualifier. Comm2a collected legal fees after winning Wesson, and is currently litigating for legal fees in Richmond. Comm2s is prepared to litigate this issue as many times as necessary for the state to get the hint. In fact, I am meeting with a potential plaintiff for Round III tomorrow.
 
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Because CT law says that if you are acquitted or charges are dropped, it didn't happen. His offense happened in CT.

Which is why he needs to see if he was actually convicted of anything using the link I provided in an earlier post.

"I was given a day of community service"

That would be a sentence, so he was neither acquitted nor charges dropped. And he did appear in court as a defendant so the question is quite unambiguous as is the answer.

If this happened in CT, you would be describing what we call Accelerated Rehabilitation, or AR. You do your community service and the charges are Nolle'd. After 12-18 months, if you keep your nose clean, the charges are dismissed and all records of the arrest, investigation, and sentence are DESTROYED.

All that is kept is a notation that you received AR once. Its done because you only get one "get out of jail free" card in CT, namely AR.

Don

- - - Updated - - -

Because CT law says that if you are acquitted or charges are dropped, it didn't happen. His offense happened in CT.

Which is why he needs to see if he was actually convicted of anything using the link I provided in an earlier post.

Does CT erase the record from the Interstate Identification Index?


CT does not submit them unless you are CONVICTED. There is no criminal history unless you are convicted.
 
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