Many people see criminal charges against them dismissed or are acquitted, but then take no action to have the charge removed thinking that it will not affect them. Making this assumption is a big mistake.
First, a person’s “criminal record” is not as simple as what most people understand. When someone is charged with a crime, the interaction is logged into the local police or the Sheriff’s computer systems. Next, if someone is arrested, they are booked by their local Sheriff and a record is created at the jail. Some law enforcement offices put out lists of arrests to the public which are then picked up by the media.
Once a charge is booked by the Sheriff, it is often reported to the Virginia State Police. The Virginia State Police maintains the Virginia Criminal Information Network (“VCIN”). VCIN shares data with the National Criminal Information Center (“NCIC”) which is maintained by the Federal Bureau of Investigation. A case is opened with the Court – typically the General District Court for most adult charges – and then this information is booked into the Supreme Court of Virginia’s filing system.
Access to VCIN and NCIC is extremely limited by state and federal law and third parties must typically get permission from a person to access those records. However, private companies have developed systems to pull information off public websites including the Supreme Court of Virginia website and then repackage the information and sell it to third parties for criminal history checks.
The provision of many reports is governed the Fair Credit Reporting Act (FCRA) which requires public record data to be reported accurately.
These reports are used by the FBI to conduct security clearance checks, employers to screen applicants, landlords to screen tenants, and insurance companies to rate potential insurance policies. Colleges consider criminal background in admission and many professional licenses require criminal background screenings.
While a dismissed charge is not a conviction, many people see a charge and speculate about what occurred given that many charges are dismissed for technical reasons such as missing witnesses or constitutional problems and require explanations. It is impossible to know whether you did not get that callback interview because an employer saw a dismissed charge and another equally qualified candidate had no charges.
In addition, some employers actively take dismissed charges into account during hiring decisions. For example, I have represented individuals who were denied sponsorship for a Series 7 security broker exam because they had old dismissed misdemeanors on their record. Most state bar examiners require prospective lawyers to explain dismissed charges.
I also tell many clients that you never know where your future will take you when you are young and having to explain a situation 10-20 years later can often result in wasted time and unnecessary embarrassment in scenarios you never imagined while younger.
Under current Virginia Law, persons are only eligible for an expungement who were acquitted after a trial or if a case was dismissed and there was no stipulation as to guilt. Many deferred disposition agreements, such as a disposition under § 18.2-251 of the Code of Virginia require an accused person to stipulate they are guilty before entering a program. In addition, persons seeking an expungement must also often show a manifest injustice which is often a low hurdle.
Finally, companies sometimes fail to remove records from their criminal background reports after they obtain an expungement. If this happens to you, you might have a claim against the provider pursuant to the Fair Credit Reporting Act and should call counsel.
The attorneys at Surovell Isaacs & Levy PLC can both help you obtain an expungement if you are eligible or help if a background check company is putting our inaccurate information about you. Please contact us at 703-251-5400 and we will be happy to set up a consultation or check out our website at www.surovell.wpengine.com.
Posted in: Consumer Law, Criminal Law, Employment Law