For anyone who has gone through a situation in their past that has resulted in some sort of criminal conviction inevitably you will come across a time where you are asked questions regarding your past. These usually appear in the form of background checks on job applications, volunteer situations, church preschool positions, youth coaching positions, etc.
Typically a question may ask "Have you ever been convicted of any misdemeanor or felony?" Sometimes the questions will ask "Have you ever been charged with any misdemeanor or felony?" Obviously there is a key difference between these questions as one is asking for convictions and another is asking for just charges. However, regardless of the question in order to properly answer it you need to know the status of your prior conviction.
Just because you are charged with a criminal offense does not mean you are guilty of the offense. One of our key constitutional rights is that the state has to prove beyond a reasonable doubt guilt and until that point you are innocent. Some may have a pending criminal charge and have to fill out a background application and do not know how to answer the question. If the question asks if you have been convicted of any criminal offense; if the charge is just pending at the time and you have no prior convictions then the correct answer would be "No" because you have not been convicted.
The much more broad question of "Have you been charged with any criminal offense?", poses more of a problem. If you have a pending case then you likely have been charged with a criminal offense and therefore would have to answer the question accordingly. One interesting wrinkle in that scenario is if you have been cited for an offense by an officer with a citation and not a criminal warrant there could be a distinction, however it would be best to speak with an attorney directly to decide if that is the case.
Finally, what if you have been charged with a criminal offense but the case was dismissed? Under that scenario you were never convicted and therefore you could answer accordingly. But a key point to this blog is that if you have a case in your past that has been dismissed you should go one step further and have that dismissed charge expunged from your record.
What is the difference between a dismissal and an expungement? There can be many complicated issues regarding both but the simple answer is that a dismissal will still show up on a background check. The original charge along with the fact it was dismissed will be seen by any future employers. However, if you go one step further and expunge the dismissed case then it purges the case and any record of it from public view and therefore can not be seen. Depending on the court and how the case was dismissed there could be a fee to the court to have a case expunged.
In a future blog provided by our office we will discuss in detail how a judicial diversion can impact this entire scenario. A judicial diversion is a mechanism where you enter a plea of guilty or are found guilty however the court does not enter the judgment against you. If you complete the terms of the diversion then case is eligible to be dismissed and expunged from your record. Sometimes background checks call this a deferred judgment and many more background checks are starting to ask the question about deferred judgments. That is a topic in and of itself and can have an impact on what you are required to report on a background check and will be discussed at a later time.
If you have questions about a dismissed charge or if you would like help in expunging a case from your record please contact the firm of Parkerson Santel to set up a free consultation.