Hello All,
Wanted to ask some of our esteemed TER members with legal expertise a question.
Say you were arrested, and the case was dismissed (no plea bargain or reduced conviction). For example, say you were arrested for protesting. Paper work was processed, and then the DA decided not to try the case.
1/ Is it possible for you to get this arrest record expunged?
2/ What can of adverse impact does this have when applying for jobs?
Thanks in advance for your insights.
Take care,
L M
To the best of my knowledge:
Usually the DA will decide not to persue a conviction prior to the processing of the paperwork.
Correct me if I'm wrong but as I undertand it You were arrested for whatever it was, and the DA decided to prosecute this and then changed his/her mind?
Based on my understanding there should either not be any mention of the incident on your record, or at worst a mention that the arrest occured but the case was dismissed for whatever reason.
Practicing attorneys please chime in if I am incorrect.
If you have anything at all on your rap sheet as a result of this incident, it should be removable.
Expungment has been discussed in detail on another thread down below Good Luck
The DA's office decided not to prosecute, and the case was dismissed. There is an arrest record that states that. Is there someway to clear that?
I think it's called sealing the record or something along those lines.
Thanks,
L M
Depends on the State. In Virginia the only charges which can be expunged are charges that are dropped by the Commonwealth or where the judge or jury acquits you. And sort of plea bargain or suspended imposition with a dismisall at the end of a time period or after community service is not subject to an expungement. The record will always be there, although under the disposition section it will say dismissed.
The rule in Virginia is by Court of Appeals ruling, not statute.
They clearly said anything short of a nolle prosse or an acquital will not get you an expungement. Juvenile misdemeanors are the only exception.
sorry to say but this is an area of expertise to me. employers can not ask "Arrest Record", only "Convictions" as it is not a black mark against you to arrested, only convictions. This comes from a history of alot of arrests without a single conviction against me. I associate with an "Outlaw" motorcylce club and therefore an easy target for any investigation the LE's decide to inconvienance me with. No, I'm not a deadbeat, I'm a highly educated (Masters) gentleman in a management position in the manufactiring industry. I hope this helps as I've really aquired alot of neat facts over the last 10-15 years of harrassment. Stay cool and be safe, remember if they want to hang something on you it's easier than you think.
Arrests cannot be fully expunged in many cases. If the arrest was reported to the FBI, and most are, the FBI keeps that record until the end of time. If you have your fingerprints run thru the FBI database, they will provide a report to any official agency that asks about the arrest. They may not have conviction information, but they have the fact of the arrest.
This can mean that you have to explain what happened. Particularly if you are looking to work with children.
The case can be dismissed. You might have been arrested and released on a case of mistaken identity. You might have been convicted and had the conviction expunged. Your local jurisdiction may no longer have records about the arrest. Your state may not have records about you. But the FBI keeps the simple fact of the arrest until the end of time.
Your attorney may tell you that the "records" have been expunged. He/She is talking about court records. Not the FBI vault of data.
Not all jurisdictions report minor arrests to the FBI. So, as always, YMMV. If you have ANY doubt at all about whether you are in the system, it is almost ALWAYS better to fess up in advance rather than try to cover up.
Good luck.
Just Askin
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It really depends on the laws in your jurisdiction. Normally, expungements are only available for non-conviction data. That is if there has not been a conviction, so a deferred sentence would not be expungeable. That is under the statute. However, under the common law, the courts also have equitable powers that they could exercise wherein they could expunge normally unexpungeable information, but that normally takes some effort to have the prosecution agree to remove the information.
If you have been arrested and the charges were subsequently dismissed, the fact that you had been charged or even arrested with still appear on your defendant criminal history and on a national criminal history check, however, it will show as a dismissal. The only way to have that non-conviction data removed is by getting a court to issue a court order directing all agencies to remove that information from their records, which is what typically happens with an expungement. Thereafter, if you are ever asked on an application, whether you have ever been arrested, you can legally say that you have not, depending on the laws in your jurisdiction.
Sorry Lustysatyr, but I have to respectfully disagree with you on that one. If you have been arrested, and if the record of the arrest goes to the FBI, and then the matter is dropped with no prosecution, or you get a conviction that is later expunged, you have still physically been arrested. Even if it was only a case of mistaken identity.
Now you are suggesting that you can lie on an application, and say you have never been arrested because there was no official finding of guilt. That is going to sound REALLY LAME when the FBI fingerprint check comes back with the arrest record, which will never, ever, ever, ever, leave the FBI records.
You are now WAY behind the game, having to explain not only the arrest, but why you lied about it. "But I didn't think I was lying from a legal perspective." Isn't going to cut it with most employers/social services people.
If you've been arrested, and you are going to have your prints run, it is almost always better to cop to the arrest in the first place. An arrest with no conviction is a nothing. Lying on the form, whether you are "technically" lying or not, is a big deal to most receivers of such forms.
Play safe.
Just Askin
[email protected]
but he said they cant ask if you have been arrested on a job application, only if you were convicted here in california. If you get it expunged that means the case is dismissed.
That is why I said that it depends on the jurisdiction. In certain states you are permitted to answer certain questions in the negative after you have the expungement. If you recall, that is the same problem the the President had over his DUI arrest, decades ago. Technically, after the expungement is granted, all law enforcement agencies have to remove your information from general dissemination, however that does not usually happen and short of taking them up on a contempt motion you really don't have a remedy. Now in certain jurisdictions, you may not be able to give a negative response to the same questions that you may be able to answer in the negative in another jurisdiction, so you always need to consult with an atty in the jurisdiction that you reside in.
As an aside, most employers are only able to ask about convictions, since in our legal system, the fact that you may have been arrested and charged cannot be held against you, since we do always enjoy the presumption of innocence, or we should!
I was thinking in the broadest terms of the question - "Have you ever been arrested?" If employers can't ask that in some states, then they can't ask. In all states there are times when you need to ask that question honestly. Social Service applications for example. Looking to become a foster parent, adopting internationally (the Feds get involved in that one), are times that spring to mind.
I have just seen too many people think that expunged record meant no record of arrest. Frequently it doesn't. Always be prepared for the bad news, and don't lie.
If the employer form asks about arrests, and they are not allowed to in that state, complain about the form. If it only asks about convictions, then only answer the question they ask.
Just my advice, worth what you paid for it.
Just Askin
Unless you are a minor, arrest CANNOT be expunged in California. PERIOD! That's the bad news, the good news is that very few employers, agencies, or regulators ask the question: "Have you been arrested?" It's either have you been convicted of a felony or misdemeanor. If someone starts quoting 1203.4 of the California Penal Code at you, that's not expungement!