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Have you ever wondered if someone’s charged but not convicted, background check results might show up during an employment or criminal history check? If so, you’re not alone.
If someone has been arrested, many times the sweetest words they can hear are “the charges have been dropped” or “case dismissed.” However, even though many think that their legal troubles may end when they walk out of that precinct or courtroom, this isn’t often the case.
Even if you were arrested but not convicted, the arrest can haunt you for years without the conviction. It won’t matter that the charges were dropped or that the case against you was dismissed for whatever reason. Sometimes all it takes to bar you from an opportunity like a job or even housing is the fact that you were ever arrested at all.
So knowing how charged but not convicted background check rules are applied can mean all the difference between success with a new chance, and failure.
Is it Public Record If I Was Arrested or Charged But Not Convicted (Background Check Rules)?
Short Answer: Yes. if you were arrested and charged, but never convicted, it can show up on your criminal history report. However, the long answer is a little complicated… but also yes.
Unfortunately, even arrests without convictions can show up on a background check.
If you have ever been arrested, then yes, you do have a criminal record. This includes arrests that ended with non-convictions, such as when charges were dismissed or no charges were filed.
For example, this can occur if someone who just turned eighteen is arrested (juvenile records can generally sealed) for something like setting off fireworks in an abandoned field, but the local cops decide not to charge them afterward, since no damage was done and no one was hurt. The Disorderly Conduct and Reckless Endangerment arrest was used to stress the dangers of violating the law, like accidentally starting a raging wildfire.
The arrest would likely be embarrassing but quickly forgotten. But a few years later, if a potential employer runs a background check on that person, the Reckless Endangerment arrest will appear. In fact, it may even appear on a juvenile criminal records search.
In a case like this, since the person’s fingerprints and mugshot weren’t taken, they may assume that the violation would show up on a criminal record check.
However, if a person is arrested and charged, then they very likely have a criminal record. And convictions are also part of the public record because they can point to a danger for others if ignored.
Typically, a charge indicates that there is a belief that enough evidence exists, either through witnesses or otherwise, that the person has committed a crime. Of course, the justice system still maintains that a person is believed innocent until proven guilty (conviction). So, a charge alone is not enough to determine guilt.
But, once you have been charged, even if the charges are dropped by the prosecuting attorney or “thrown out,” (dismissed by a judge), you will likely be fingerprinted and entered into a the Integrated Automatic Fingerprint Identification System (IAFIS), used by not only local law enforcement, but also by the FBI.
On a background search, these charges can appear… as well as any arrests.
Ways that you can still have a non-conviction arrests and charges on your criminal record include:
- Arrested, but no charges were filed.
Like in the first example above, you were arrested but charges were never filed. Even without charges, the arrest is public record and can show up on your criminal records.
- Arrested and charged, but then the charges were dismissed.
Many people wonder, if charges are dismissed do you have a criminal record? With background check rules, the answer is yes. This occurs when a person is arrested and charged, but lack of evidence or extenuating circumstances lead to them being dismissed by a judge or dropped by the prosecuting attorney.
- You were arrested, completed a diversion program, and the charges were dismissed.
A diversion program is a specific exception that can occur, usually after a person is booked into local jail. “Diversion” is a special circumstance that allows certain addiction-related, mental health-related, and even military or veteran arrests to avoid jail time and have their charges dismissed. If the person being arrested is willing to and actually does complete a rehabilitation program, the judge will dismiss the charge. In some states such as California, they will even seal the record.
While there are diversion programs across the United States, the process of sealing the records of the arrest and associated records varies from state to state.1
The National Institute of Corrections published a study showing that diversion programs are effective when used at the juvenile level, but many other advocates argue that the fees associated with these sorts of ‘walk’ programs make the use of the system disproportionate for a wealthier candidate.
- You completed a Deferred Entry of Judgment or “DEJ” and the charges were dismissed by judge.
A “DEJ”, or “deferred entry of judgment,” can actually encompass or exclude the diversion program, but that depends on the state where a person is arrested. Since 2018, California doesn’t require a guilty plea for what they now call “pretrial diversion,” so the entire process of judgment is held off until after the diversion program – their system excludes the diversion program from DEJ.
In other states, in order to receive a diversion program, a judge often requires that the person receiving the program enter a guilty plea first. This would be a judgment, which would then be deferred, or held off, until the person either passed or failed the program. If they passed, charges can be dismissed, but if they failed, the judgment of the guilty plea is entered and acted upon accordingly.2
In California, the law provides for pretrial diversion for immigrant defendants charges with minor drug offenses.9
Deferred entry of judgment also comes up in cases involving mental health. Defendants who have certain mental health conditions can ask for a DEJ, but there are some hoops to jump through. Certain mental health conditions must be proven, in that you must be examined by doctors and psychologists and found to be mentally ill according to them. In addition, other mental illnesses are completely exempt from the option and won’t be considered for a deferred judgment at all. The deferred judgment must also come after the defendant completes a rehabilitation program in a mental health facility. In some cases, people who are found not fit to stand trial never really complete the program and will live the rest of their lives out in that facility, while others may only spend a few months to a few years.2
- You went to trial, were accused, and were found not guilty. (Charged but not convicted background check rules)
This is probably one of the simplest ones to explain, as most of us are probably familiar with courtroom and legal crime dramas on TV. In this case if a person was arrested, charged, booked, arraigned, and given a lawyer, though not necessarily in that order, went to trial as a defendant, gave testimony, provided evidence just like the prosecution did, there were witnesses called, and in the end, the person was determined not guilty by a jury of their peers. That person is declared innocent of the crime, and thanks to double jeopardy, can never be tried for that exact same crime again.
Can People See Non-Conviction Charges When they Show Up on a Criminal Background Check?
Most non-conviction charges will appear on a criminal background check, but there’s a loophole.
Arrests are part of the public record, meaning that anyone who wants to can technically get the information. However, there are rules about background checks that constrain access to certain information based on the reason you’re searching for information in the first place. Ultimately, what information you obtain, how accurate it is, and what you can legally use that information for is up to the state that you’re in and the background check party that you use. Many third-party background check companies may not be able to obtain accurate information or present it clearly, which is a problem when the check includes arrests that didn’t end in convictions.
The confusing thing is that sometimes arrests will show up in a Level 1, or state, background check, but they won’t show up in a Level 2, or FBI, background check.
So when you’re officially arrested, as in put in handcuffs, put into a police car, and brought into the station based on probable cause for an arrest or because there was a warrant for your arrest, that is logged into a local system. In recent years, these local systems have all begun to share information to create statewide and, in some cases, nationwide databases in order to create a more cohesive and comprehensive collection of possible suspects and criminals as people become more mobile and global.
However, if you’re not fingerprinted, that arrest is not guaranteed to show up on a national system, simply because some local systems don’t put all of their arrests without charges into the national systems. They only put fingerprinted charges into the national systems.3
This doesn’t happen in all cases, of course, or even in most cases. Like mentioned above, this is just a glitch that happens sometimes. In 2023, most arrests without convictions will show up in any background check done, depending on the state you’re in and the background check you’re using.
Wondering do pending charges show up on a background check? Pending charges are arrests that have been made that have not yet received any judgment at all, meaning that these charges are cases that are currently ongoing. So if you’ve been arrested and released on bail, but are waiting to go to trial or for the judge’s decision, these charges can also show up on your background screening.
Can Having an Arrest Without Being Convicted Impact Future Employment?
Short & Long Answer: Yes.
The law on how information from a criminal record may be obtained and used for employment varies from state to state. Some states have laws that restrict employers on how they’re allowed to use criminal records, while others are more friendly to workplace controls.
For arrests specifically, some states say that an employer can only consider non-conviction arrests made within the last thirty days when hiring a potential employee. Other states allow employers to consider arrests, including non-conviction arrests, going back in your records for as many as seven or more years. In Texas, for example, the law doesn’t place a limit on how an employer can use a criminal record, unless that criminal record has been expunged.
States have the power, generally speaking, to determine whether or not to consider an arrest that was charged but not convicted background check information.
Another factor to consider is whether the job you’re seeking will be concerned about the type of charge or arrest you have on your record. For example, even as arrest for a crime against a child can potentially disqualify an applicant from a position in a school system.
There are federal laws that offer protections for job-seekers’ rights, however. Title VII is included in the Civil Rights Act of 1964, and is enforced by the Employment Litigation section of the Department of Justice, which makes it illegal to exclude or discriminate based on race, creed and other factors.
Additionally, the Equal Employment Opportunity Commission, or EEOC, has explained how employers can avoid discrimination by considering the type of offense and how serious it was, the length of time that has passed, and what impact an offense like the one in the convictions records would actually have on the job in question. Title VII falls under the purview of the EEOC, which has also explained that employers should give applicants the chance to explain the arrests and criminal record, as well as provide information, if necessary, to prove that a potential employee shouldn’t be denied the job or, at the very least, the opportunity based on the arrest, with or without charges and conviction.4
Some states ban the use of arrest records in the hiring process. These states include, but aren’t limited to:5
- New York
In California, recent law changes to California background check limitations include the updates to 2018’s Fair Housing and Employment Act, FEHA, made in 2020. The FEHA prevents employers from asking about conviction history in the process of hiring someone or denying someone employment based on a criminal record without assessing the job against the conviction first. Then, if the employer deems that the conviction disqualifies the potential employee, they have to notify them in writing, include a copy of the criminal record, and allow the person five business days to respond with either an explanation of the circumstances or proof of rehabilitation. If the potential employee is further denied the job based on their record, they’re notified in writing again and can then file a complaint with the Department of Fair Employment and Housing if they wish.6
Updates to FEHA now include clauses that don’t allow employers to get around the rules by allowing people to work before their background checks come in, technically losing their status as an “applicant.”
In addition, clarifications have been made specifically regarding arrest records. In California, it’s illegal to use arrest records at all to inform hiring decisions, so any arrest records without charges or convictions shouldn’t be used in background checks for employment. While certain employers in some caregiver careers are allowed to have a little more information than other employers in careers that don’t have access to things like controlled substances or require caregiving of patients, it doesn’t mean that healthcare employers are completely exempt from California arrest record law.6
It’s important to note that background searches can reveal a number of crimes and conviction records, and a detailed analysis that shows serious security risks should indeed prevent some individuals from obtaining work in certain industries.
Is There a Way to Remove Non-Convict Records from Background Checks?
Short & Long Answer: Maybe!
There are a few different ways to remove non-convictions from your records. You may have heard of having your criminal record expunged. How to remove criminal records from a background check involves withdrawing a no-contest or guilty plea and having the charges dismissed by a judge with the help of a defense lawyer. Only certain cases are eligible for expungement and the conditions vary from state to state. When a conviction is expunged from your record, it is not considered part of a background for employment but may show up for some government agencies.7
Some non-convictions in your arrest records may be eligible for being sealed, or made completely private except to a select few government agencies. This applies to all of the diversion programs, as well as charges being dropped or dismissed, as well as a jury finding you not guilty. Keep in mind, some arrests and charges may not apply, or the judge may not grant your petition. It’s a good idea to have help and contact an attorney for services in assisting any expungement actions you need to take. They will be more familiar with state code and laws.
In California, as an example, you may even find that your arrest and records qualify to be sealed and destroyed. This can apply is a person is Factually Innocent. Now, this is something that isn’t easy to prove, and probably isn’t something that you can prove by yourself. You would more than likely need a lawyer if only for the large amount of paperwork involved. However, if no charges were ever filed, if charges were dismissed, or you were found not guilty because you were found innocent, according to irrefutable facts, it’s completely possible to get the arrest and associated records not only wiped from your criminal record but completely destroyed as well.8
Overcoming a Non-Conviction on Your Background Screening (Charged but Not Convicted Background Check Solutions)
Being arrested for a crime doesn’t always mean that you committed the crime. In other cases, you can get charges dismissed by going through classes, having no charges filed at all, or by going to trial and being found not guilty. Diversion programs and deferred entry of judgments exist to help people recover from addiction, rather than encounter more of it inside a prison.
Once these factors are employed, you should be armed with the information you need to honestly explain any arrests or charges that appear on a background check to a potential employer or landlord. In fact, by approaching new opportunities honestly, and having the information to back up the reasons for the non-conviction, you can generally overcome any detrimental impacts of a criminal history search before they ‘surprise’ an employer.
As fair chance laws are being put into place and enforced in greater numbers across the country, and as expunging and sealing records is becoming easier and easier to obtain, you don’t have to worry that a non-conviction might ruin your chance to gain employment, adopt a child, or find residential property. While arrests without convictions currently show up on background checks, more and more is being done to make sure that employers, landlords, and others understand that they can only consider those arrests in certain cases and only for a period of time in certain states.
Knowing how charged but not convicted background check rules apply in your state is the first step to ensuring that your record is clean.
1Shouse California Law Group. 2021. 3 Types of Diversion Programs in California & How They Work. Shouse California Law Group. 21 October 2021. Web. <https://www.shouselaw.com/ca/defense/pretrial-diversion/>
2Shouse California Law Group. 2021. Deferred Entry of Judgment in California Criminal Cases. Shouse California Law Group. 21 October 2021. Web. <https://www.shouselaw.com/ca/defense/laws/deferred-entry-of-judgment/>
3Victig Screening Solutions. 2021. How FBI Background Checks Are Flawed. Victig. 23 October 2021. Web. <https://www.victig.com/how-fbi-background-checks-are-flawed/>
4Guerin, Lisa. n.d. Employer Use of Arrest and Conviction Records in Texas. NOLO. 20 October 2021. Web. <https://www.nolo.com/legal-encyclopedia/employer-use-arrest-conviction-records-texas.html>
5BackgroundChecks.com. 2021. Employment Background Checks and the Use of Arrest Records by State. BackgroundChecks.com. 21 October 2021. <https://www.backgroundchecks.com/learning-center/employment-background-checks-and-the-use-of-arrest-records-by-state>
6Fliegel, Rod M. 8 October 2020. Updates to California’s Restrictions on Using Criminal Records in Employment Decisions. Littler. 22 October 2021. Web. <https://www.littler.com/publication-press/publication/updates-californias-restrictions-using-criminal-records-employment>
7Shouse California Law Group. 2021. Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC. Shouse California Law Group. 21 October 2021. <https://www.shouselaw.com/ca/defense/penal-code/1203-4/>
8California Courts. n.d. Record Cleaning: Arrest With No Conviction. California Courts. 23 October 2021. Web. <https://www.courts.ca.gov/42539.htm>
9Brady, Kathy. January 2018. California Pretrial Diversion for Minor Drug Charges. Immigrant Legal Resource Center. 23 October 2021. Web. <https://www.ilrc.org/sites/default/files/resources/pretrial_diversion_ab_208_jan_2018.pdf>