Greetings everyone,

I'm the guy who got caught up in an LE sting in Los Angeles, and busted for "soliciting prostitution".  Since this is my first arrest I am offered the opportunity to participate in a Prostitution Diversion Program.  In this program, you take an 8 hr class, an HIV test, and basically that is it.  Stay out of trouble for 12 mos and  there is a "dismissal".  My lawyer tells me I would be entering into a formal diversion plea.  He thinks I should go to trial, since I have a case and have a reasonable shot at a not guilty verdict.  He also says that if I take up the City of LA on this offer, I will be in a "murky area", and anyone that does a background check will be able to see my record of having entered a Prostitution Diversion Program.  Also on an application for employment I will also probably have to admit that I participated in a Prostitution Diversion Program  since it would be discovered on a background check anyway.   The lawyer thinks I should go to trial and go for a  "black and white" verdict, rather than get caught up in a "grey area".  Anybody with experience having participated in a Prostitution Diversion Program, and its reprecussions, both short term and long term?

Thank you,
Sinbad

 

note this on a w that  it is a formal diversion plea

These days the record is worse than the punishment, and where a crime of moral turpitude is involved, the record can really hurt you.

One question I have:  When one is found not guilty, does the arrest still come up on a search?

Couple of thoughts here:  First of all,  the program you describe is quite common in Southern California courts but to really advise, one would need to know what exactly the parameters are.  If it is truly diversion, with no entry of a guilty plea nor pronouncement of judgment (i.e.. sentencing), then the diversion may be the best may to ensure that you minimize the impact.  If there is no conviction, there would be no record for check and you could answer "no" to any employment or other application forms that ask, "have you ever been convicted of a crime?"  That said, it is difficult to predict what information will continue to get into the ether, to illustrate the problem, simply punch "background check" into a search engine and get 400 million hits.  My experience, however, is that only cases where there is a conviction does this rear it's ugly head.  If it is truly diversion, the case is held in abeyance pending your completion of the terms (very mild ones at that) and dismissed at the end, this scenario would guarantee that you do not have a PC 647(b) conviction on your record.

As far as going to trial, that is a very fact specific question.  It seems, however, that your attorney is emphasizing the best case scenario, an acquittal but understand the other option is the worse scenario: you end up with a very ugly conviction on your record that will continue to haunt you, will most certainly be available for public scrutiny and need to be disclosed in the situations describe above.  Ask your attorney for the names and case numbers of his last 5 not guilty verdicts, see if he actually has some game or is just talking a good one.  If you go to trial and lose, the only winner is him, who will get paid more for you to be in worse situation.  And if he says he can't give you that information due to "attorney-client" privilege, call bullshit, that would all be a matter of public record, available to anyone who wanted to go to the court and do some digging.  Good luck!

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I would do my own research on the diversion program.  Many of them leave the case open with no adjudication.  You complete the program & year of staying out of trouble and the case gets dismissed with no finding & no record.  If you get caught again before the probation is over & they proceed with your open case.  
It seems to be that LA is such a program...  otherwise arrestees wouldn't take it.    http://www.scpr.org/news/2012/07/10/33182/reducing-demand-prostitution-through-johns-school/
http://www.gunsberglaw.com/prostitution-lawyer-los-angeles

I would seriously look at your own case & if there's an error that you can really beat the charges.  If so you'll have to judge.  Your atty will probably make more if you fight it...  win or lose.  

Good luck!

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Very complicated question.  

The Feds keep everything that isn't expunged, but it isn't public, and they typically just have felony arrests.  

State systems vary by state, and they keep all arrest data that isn't expunged. Whether they make it public or not varies. Some states have a public court database and a non-public arrest database. Some make both public. Others make the arrest record public once they receive the matching court disposition (conviction, dismissal, acquittal). If there is a state law requiring a background check, this is usually the system (plus NCIC) that gets used, and whether that background check will reveal an arrest without a conviction depends on the law (day care provider licensing vs law enforcement licensing, for instance.)

Local arrest records, however, are public, and this makes sense since you don't want the government to secretly keep people in jail. But there are thousands of jails, so searching their records one at a time is onerous.  

This is where private web sites come in. They collect and aggregate arrest data and sell access to those who want to conduct background checks unconstrained by state law.

So whether an arrest with an acquittal is public depends on state law and how thorough the person looking for it wants to be.  

In all cases I know of, court records are public barring a judicial seal, so the acquittal would be public even if the arrest wasn't. Why might that matter? Charges on arrest can be different from those filed by the prosecutor: soliciting in public place vs soliciting, for instance.  

This is an issue where I would be reluctant to give advice without knowing state law and how the person's life would be affected by different outcomes, but diversion programs are usually pretty good deals, an attempt by prosecutors to reduce their caseload and show some mercy to first-time offenders who haven't committed crimes worthy of having their lives wrecked by a conviction. Because the arrest is already out there for anyone who looks hard enough, I would look very closely at the path and details of any diversion deal before throwing it out, particularly if I had actually solicited prostitution. I wouldn't want to stake my life on a jury allowing me to hide behind hobby euphemisms or a judge throwing out evidence.

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The only way I know of to get rid of the arrest record is to get a factual finding of innocence. This is different from and much more difficult to get than a not guilty verdict.  A jury returning a not guilty verdict means that 12 people found that the prosecution did not prove the case beyond a reasonable doubt.

A factual finding of innocence means you convinced a judge that you are truly and factually innocent after the prosecution decided not to press charges or you were acquitted. It happens, but it's very rare.

Generally diversion is a good idea. I know for drug diversion the statute reads that once completed , the arrest is deemed not to have occurred for most employment purposes.  I do not know if that is true with LA prostitution diversion.

However, your attorney knows the facts of your case and the law. His/her opinion should carry weight. However, in the end it is your decision whether or not to go to trial. But your lawyer should be willing to explain to you why you have such a good trial case and his strategy at trial. If he/she isn't willing to do that, that is a major red flag.

Absolutely!  The record will, however, show if the defendant was found not guilty, put on probation, etc.  Unless you are a juvenile, and records are sealed, your information is out there for all to find, should they want to put in the time.

   Most businesses, rental agreements, etc, have moral clauses.

   Granted, I am in DC, and have never been arrested, but my attorney knows what I do, etc, and he would never allow me to choose to go to trial, should I get arrested.  Keep in mind, reporters cover  court rooms/cases all the time; no matter how mundane.  

   The other question one needs to ask, is: if I go to trial, and lose, will I have to register as a sex offender?  Talk about your life going to hell in a hand basket.

   Sounds like the OP has many more questions to ask his lawyer.

Sincerely,
Kelly

Diversion guarantees no conviction, as long as you follow the terms of the agreement.  They will dismiss the charges against you.  You can therefore truthfully answer that you have never been convicted of a crime.

Going to trial means you will either be found guilty or not guilty.  You will have to pay your attorney more money to defend you in a trial, and there is no guarantee that you will be found not guilty.  

You are being offered a dismissal, why would you give that up by going to trial and risk that you can be found guilty?   In my opinion, if you go to trial, you have absolutely nothing to gain, and everything to lose.

As for the "gray area" you can never remove a record of your arrest anyway.  Fortunately, anybody who is arrested in this country is presumed innocent until proven guilty.

Expungement is only from public records -- nothing ever gets deleted from the government databases.  In the FBI records, for example, a record just gets noted as expunged, but it will forever be there for LE to see.

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Expungement rules vary from state to state. In some instances merely public records are expunged and LE can see everything. In others the LE data will be sealed, and LE will only know that a sealed record exists which can only be looked at for specific purposes. In other states, parts of the arrest record can be deleted through expungement. I don't know what applies in California. If you do, I defer.

NCIC (the feds) has arrest records from all 50 states, and that info stays in tact regardless of what happens at the state level.

Look, you hired a lawyer for a reason. If you don't like his/her advice, consult with another one (or 10) until you find one you are comfortable with. Nobody here knows the specifics of your jurisdiction, so go find other local lawyers and see what they say. Any criminal defense lawyer worth the money should be willing to chat with you briefly for free, so go talk to a bunch. If most lawyers tell you the same thing your current one is saying, that should tell you something. If most of them say something else - well, then you've got some thinking to do.

Some general points:

-dadvocate's posts are correct, and right on point.  

-Will you be eligible for the diversion program even if you go to trial? In my jurisdiction, diversion programs are generally given to first time defendants even if they're found guilty at a trial, as if they agreed to it from the beginning. I never advise my clients to just take the diversion program, unless there is a chance a judge will not give it to them. For example, in my area, every first-time domestic violence defendant has the ability to enter into a diversion program, but this is at the judge's discretion. I almost always tell my clients to have a trial, because the judges will all offer this program for basic domestic assaults after a guilty finding at a trial. However, I will always advise clients who choked or otherwise put their hands around their victim's neck to just take the diversion program, because my judges do NOT like giving the diversion program to those defendants. This is why you hire a lawyer who knows the area and jurisdiction - your lawyer may be saying that you'll get the program anyway if you lose a trial, so why not take the gamble and see what happens? Or she may not be saying that. But she's the local expert.

-expungement rules vary from state to state. You need to know what the rules are in your jurisdiction before choosing whether to go to trial, or take a diversion program. In my jurisdiction, you can't get anything expunged if you enter the diversion program, in a jurisdiction 10 miles away you can get it expunged if you are successful in the diversion program.

-Arrest records are generally expunged if the final charge is expunged. Again, rules vary by state, but for the most part an expungement order erases EVERY record of the charge, including the arrest.

-Private content aggregators (read: Westlaw, Lexis, background search companies) are not required to follow expungement orders.

-NCIC is a government entity. They only aggregate state government info. Though a state government can't order a federal entity to do anything, the state government controls its own records. Thus, since the NCIC aggregates state records, if the state deletes a record, the NCIC won't have a record to aggregate. Make sense? Granted, this is how it's supposed to work, not necessarily how it actually does. But I've never had a client with an expunged record get screwed by the NCIC. Private aggretators? Yes. Government aggregators? No. Even if it showed up on the NCIC, you can just get the state-level paperwork to show it was expunged. Most employers understand that people get screwed by the criminal justice system at times, so if you have a good explanation of why something got expunged, and talk about what you learned from the experience, you should be good. Plus I always tell my clients they can use me as a reference, and though I can't say exactly why something got expunged, I can always tell prospective employers what expunged means, and why you answered what you did.

-Do you have to report a diversion program on a job application? Depends on the Q. If the q is: "Have you ever been charged with a crime?" the answer is yes. If the q is: "Have you ever been CONVICTED of a crime?" the answer is no (if you complete the program). Your lawyer is probably saying that the reality is you won't get this expunged, thus it will show up on a background check, thus it may be better just to explain what happened even if you don't have to.  

-Revealing the info - I ALWAYS advise my clients that even if they get everything expunged, there are many ways in which this can come back to bite them. When you're dealing with smaller entities, or entities that don't have you sign a separate background check form, you're most likely not going to have any problems. And if you do, as long as you answered the question correctly from a legal standpoint, they probably won't deny you a job. Obviously this is difficult to predict, and depends greatly on the industry and the kind of job you're looking for. BUT if you are looking for a government security clearance, or other government related job, honesty is the best policy. Most government entities cannot discriminate based on information you volunteer if it is not material to the investigation, so more information often will not harm you. Whereas, hiding information that they eventually find out WILL harm you.  

But again - if you don't like your lawyer's advice, talk to a bunch and take the majority opinion.

they specifically told me that they see expunged records; that their records show that the case was expunged by the state, but that the record remains and available for them to see.  

Say what you want as an alias lawyer but I know from personal experience that the feds can see expunged records.

And, for the record, my case was not for any kind of serious crime:  it was about a $200 bounced check.  The facts:  I accidentally bounced a check.  As soon as I realized it I went to the store and paid it.  The store got its records mixed up and sent my case to the local check fraud court.  I showed up in court and showed the judge proof that I had paid the store.  Judge dismissed the case.  I had the case expunged.  

And yep, when border patrol asked me if I'd ever been in trouble with the court, I said no.  I believed it to be the honest answer.  They disagreed and questioned me about it.  For hours.  

-- Modified on 7/18/2013 9:42:21 AM

“an expungement order erases EVERY record of the charge, including the arrest.”?

      If so, that is a clear minority position. Expungement as a general rule applies only to public inspection of specified police and court records. In most, if not all states, the underlying records are not destroyed but are simply sealed, or removed to a secure area where persons not having legitimate reason for access are denied access.  State LE, various federal agencies, and almost always the board of paroles and pardons can access the records, although the procedure for doing so varies.

      From a policy standpoint, it makes no sense to erase every record. The police are always reviewing investigative files when they open a cold case to see who the leads were. The Maryland statute, for example, expressly provides that expungement does not apply to “investigatory files” and law enforcement work product used solely for police investigation.
 
        And if you apply for federal employment that needs a security clearance, you better believe they will find that prostitution charge no matter what state law says. So I would be surprised to learn that any state “erases EVERY record.

http://www.moga.mo.gov/statutes/C600-699/6100000140.HTM

Court records are kept but only visible with the label "expunged" and visible under narrow circumstances. Minnesota is similar. There may be more but my knowledge isn't exhaustive.  

I think everyone agrees that you can never completely eliminate the electronic history of an arrest or court record, if for no other reason than the actions of private data aggregators who aren't bound by any expungement order.

Again, there are 50 different state systems, and they are integrated with the FBI in a way that allows correcting errors, updating records, etc. That isn't to say that a record deleted locally *will* be deleted in NCIC, but it's certainly supported.  

I think you are overgeneralizing from your own experience. No idea how Border Patrol knew about your expunged case, but it's very unlikely it was NCIC, as $200 fraud cases usually aren't felonies, and don't result in arrest data submission to the Feds. More likely they used some private data aggregator, or had access to a state court system (they might have called a law enforcement agency in the state listed on your Driver's Licence.) I do agree its hard, if not impossible, to completely remove the electronic trail of an arrest

When an order of expungement is obtained in this state, here is what happens to the court records of your arrest:

Entries of a record ordered expunged shall be removed from all electronic files maintained with the state of Missouri, except for the files of the court. The records and files maintained in any administrative or court proceeding in a municipal, associate, or circuit court for any offense ordered expunged under this section shall be confidential and only available to the parties or by order of the court for good cause shown. The central repository shall request the Federal Bureau of Investigation to expunge the records from its files.

        So you as you recognized, the court records are never destroyed.  They are available to LE on a showing of good cause. As to the feds, the statute is not binding on the FBI. They keep the national fingerprint database and I assume that the fingerprint card (of course it is electronic these days) also lists the charge. In our post-9-11 world where the government snoops on almost every communication we make, I think it is naïve to even assume that the FBI would honor the expungment  request. Or maybe they will get around to it in five years I don’t know.

       In California I don’t think expungement protects you from a variety of consequences of your conviction. I think even an expunged crime counts as a strike for the three strikes law, it still counts as a prior crime for sentencing purposes,  and does not save you from registering as a sex offender. WE would have to look all this up to be sure but that is usually the way it goes. But if any of this is true, obviously the records are still kept.

       But the point is that expungement orders do not block LE access to the records; they block public access but that’s about it

You are simplifying things. It depends on the specifics of state law, the level of crime, who is doing the searching, in what system, and for what purpose. In some states, for some systems, for some crimes, for some purposes, yes, LE access is blocked by expungement. For me this is merely a technical point, saying I would have to know more about the particulars of a given case to make a blanket statement about the value of expungement. I am not sure why this is controversial.  

Thank you very much, Actual lLaywer, and everyone else who has replied to my post.  Your advise is most helpful!!

Sinba

Records are (supposed to be) destroyed, including the arrest records from the local jails, as well as from the State Police database. All court records are destroyed. I've actually had clients run into problems because of this - they can't find their expungement order, and the records are destroyed, so they can't prove what happened in a case when an error was made on their criminal history sheet.  

Look, the point is that rules vary by the state, there are plenty of ways to get around the expungement statutes, but that expungement gives people plenty of wiggle room with their answers to questions. Obviously there are anecdotes and one-off situations that vary. Regardless of whether expungement is perfect (it's not), it's clearly better than not expunging something, or taking an option that results in no expungement possibility.

And yes, I'm using an alias. I think for obvious reasons linking my ID to my lawyer status would not be smart. Or maybe that's just the lawyer in me.....

The Virginia expungement statute expressly law enforcement to obtain a court order allowing access to an expunged court or police record for a pending criminal investigation or even for a LE employment application:

§ 19.2-392.3.
 ...

 B. Upon a verified petition filed by the attorney for the Commonwealth alleging that the record is needed by a law-enforcement agency for purposes of employment application as an employee of a law-enforcement agency or for a pending criminal investigation and that the investigation will be jeopardized or that life or property will be endangered without immediate access to the record, the court may enter an ex parte order, without notice to the person, permitting such access. An ex parte order may permit a review of the record, but may not permit a copy to be made of it.

 
       So you see, my friend, the records are not destroyed; public access to the expunged records is denied. But LE can always get it.

        I understand you were making a lot of other points in your post and I thought you did a good job in your advice to the OP. I was just curious if you knew of a state where LE access was actually blocked. This explains the post of  the lady who had her record expunged but discovered the border patrol found it – the records are not destroyed (some may be but never all) and LE always can get access.

     Given the advent of private companies who also maintain your records, I seriously question whether expungement is often worth the 1 to 5 thousand dollars you probably will have to pay an attorney to have your records  “expunged.” I think it is a lawyer scam quite frankly. They prey on people who have been busted and get them to pay for  an "expungement" that has often  little value except where you have a statute that allows you to say "no" when asked the "Alice's Restaurant" question ("Have you ever been arrested? Did you ever go to court?"

Mariko - you are reading the statute wrong. In Virginia there are two ways LE can get a COURT ORDER to re-open the file:
1) The defendant applies for a job as a law enforcement officer
2) LE can prove that there will be an immediate danger to someone's life or property without the record.

In Virginia, the only records that can be expunged are ones in which prosecution was not pursued, or where the defendant was found not guilty at a trial. In my opinion, the only records that would prevent immediate danger to life or property would be in the police investigation reports, which aren't public information anyway (unless you're the victim of the crime). The publicly available information is just administrative, so wouldn't help LE in any immediate investigations. Usually (but not always) police reports include only cursory information about an incident, especially if no prosecution is taken, or if the defendant wins at trial. If there is a lot of detail in the reports, usually (but not always) a defendant is found guilty. This is just intuitive - minimal investigation by LE usually means a weak case. I can think of only a couple cases that wouldn't fit into those general statements. In addition, if they wanted expunged info, it would be likely that LE would be dealing with a repeat offender, and the police reports would likely have to contain info about a common MO to be immediately necessary. This means they'd have to already have a pretty good idea what was in the reports to begin with. In addition, you'll notice that LE can only look at the records that still exist, not make a copy.  

In sum, for LE to get a Judge to ORDER the records be viewed, they have to:
1. Have an active investigation
2. Where life or property is in IMMEDIATE danger
3. Have information that shows the information in the record will be needed.

To say LE can "always" get it is incorrect. I've always said that expungement isn't perfect, but your characterizations are wildly inaccurate. The likelihood that a "not guilty" verdict on a solicitation charge would be needed by LE for this purpose seems exceedingly remote.

The only realistic scenario I could see this being used in is if LE needed to prove or disprove an alibi for a very serious crime. For example, if the defendant said they were in Utah on 7/1, but they were charged in Virginia on 7/1 with a minor offense that was later expunged. But at that point the expunged record is probably the least of the defendant's worries.  

To address your next point - since you're looking at the code - you'll note that 19.2-392.4 makes it a crime for an employer to ask about expunged information, and that job applicants are explicitly instructed they do not need to disclose the information. So, in practice, if an employer finds a mention of an expunged charge somewhere (say, a private background check company), all the applicant has to do is show the expungement order, and the employer can't ask any more info about it without committing a crime themselves. I'd say that's a pretty damn good reason to spend the money to get the charge expunged.  

Any time a potential client asked me if they could do their expungement themselves, I'd always refer them to the $50 packet available at the law library, and tell them they can come back to me if they decided it was too difficult to do themselves. They always came back.

“Mariko - you are reading the statute wrong. In Virginia there are two ways LE can get a COURT ORDER to re-open the file:  
1) The defendant applies for a job as a law enforcement officer  
2) LE can prove that there will be an immediate danger to someone's life or property without the record.  
 
       I think you missed an “or” when you read the statute. You are leaving out the most common reason LE would seek the records- a pending investigation. I’ll give you the statute again but put this time put this part in caps so you don’t miss it:

          " B. Upon a verified petition filed by the attorney for the Commonwealth alleging that the record is needed by a law-enforcement agency for purposes of employment application as an employee of a law-enforcement agency OR FOR A PENDING CRIMINAL INVESTIGATION AND THAT THE INVESTIGATION WILL BE JEOPARDIZED or that life or property will be endangered without immediate access to the record, the court may enter an ex parte order, without notice to the person, permitting such access. An ex parte order may permit a review of the record, but may not permit a copy to be made of it."  

 
         So while your discussion about how rarely life and property would be in danger is a good one, it is beside the point- that is simply not required. LE will get the record by claiming there is a pending investigation and the investigation will be jeopardized.

      I’ll even give you an example in the prostitution context. LE arrests John for prostitution. The file shows evidence he had sex for pay with ladies X, Y, and Z of Big Time agency. Ladies in interview with detective also claim John accepted discounts for reviews and listed other clients who did the same.  But DA decides not to prosecute and charges are nolle prossed. John gets expungement order.

       Two years later new task force wants to bust agency. Discounts for reviews are now a big part of the prosecution – LE will indict only the clients who did this - but the ladies are smart now- they’ve clammed up. Detective remembers this arrest and wants info for pending investigation. So he gets the order and all the expunged records are available to LE. The discounts for reviews Johns are indicted.

 
        “In Virginia, the only records that can be expunged are ones in which prosecution was not pursued, or where the defendant was found not guilty at a trial.”

 
        Sorry, you are dead wrong about that. Think of the Innocence Project. DNA proves the convicted defendant could not have been the rapist. Or the sole eyewitness/victim  recants years later. Can he get the records of his conviction expunged? Absolutely:

  "J. Upon receiving a copy of a writ vacating a conviction pursuant to § 19.2-327.5 or 19.2-327.13, the court shall enter an order requiring expungement of the police and court records relating to the charge and conviction. Such order shall contain a statement that the expungement is ordered pursuant to this subsection. Upon the entry of the order, it shall be treated as provided in subsection K hereof."

§ 19.2-392.2. The statutes listed are statutes authorizing the vacation of a jury trial conviction where the defendant later  proves actual innocence.

 
       Finally, the discussion has drifted from the issue I raised with my first post. Are expunged records actually destroyed? In Virginia, the answer is absolutely not. They simply are moved to a separate sealed file to await the day that LE needs them for a pending criminal investigation:

6 VAC 20-120-80. Expungement and sealing. A. Responsibility of the Superintendent of the Virginia Department of State Police. The expungement of a criminal history record or portion thereof is only permitted on the basis of a court order. Upon receipt of a court order, petition and other supporting documents for the expungement of a criminal history record, the superintendent, pursuant to § 19.2-392.2 of the Code of Virginia, shall by letter with an enclosed copy of the order, direct the Central Criminal Records Exchange and those agencies and individuals known to maintain or to have obtained such a record, to remove the electronic or manual record or portion thereof from its repository and place it in a physically sealed, separate file. The file shall be properly indexed to allow for later retrieval of the record if required by court order, and the record shall be labeled with the following designation: "EXPUNGED RECORD TO BE UNSEALED ONLY BY COURT ORDER."
         
      So when I said LE can “always get the records” I don’t think that was “wildly inaccurate.” They have to make one of the requisite showings but then it’s automatic