obtaining a dissmissal of your criminal record
In this series of blog posts concerning criminal records in California, we have covered details about what a criminal record really means, how to obtain your own criminal history record, how an adverse record can effect you and how to obtain dismissals. Now let’s see how a dismissal can help you.
Can obtaining a dismissal help you get a job or a license?
Depending on whether the employer is public or private, having your records dismissed can make a big difference.
Generally, private employers cannot ask applicants about dismissed records. California law states that it is unlawful for an employer to inquire or seek information about an applicant concerning arrests that did not result in a conviction, convictions that have been ordered sealed, expunged or statutorily eradicated, cases dismissed under Penal Code § 1203.4, and any arrests in which a pretrial diversion program was successfully completed. (See Labor Code § 432.7(a); Cal. Code of Regs. § 7287.4(d).)
Thus, a private employer can only legally ask you: (1) have you ever been convicted of a crime? and (2) are you out on bail or your own recognizance regarding a recent arrest? You need not tell the private employer about arrests that did not lead to a conviction or about convictions that have been dismissed.
When applying for government employment, license or certification, the law is slightly different. State and local governments are authorized to make applicants submit their fingerprints in order to receive state and federal criminal history information about them. (Penal Code § 11105.) The level of information the agency is allowed to consider depends upon on the job, license or certification applied for. For instance, agencies employing peace officers are entitled to see all convictions, arrests, and successful diversions. (Penal Code § 11105(k).) Other agencies are only entitled to view convictions and offenses for which the applicant is presently awaiting trial. (Penal Code § 11105(p).)
As a result, government employers can see every conviction rendered against you; even those that have been dismissed. (See Business and Professions Code § 480.) Thus, if a government employer asks if you have ever been convicted of a crime and the charge was dismissed, you must respond “yes, conviction dismissed.” Because of the safeguards under Labor Code § 432.7(a) however, dismissed convictions cannot be considered for employment purposes.
Note that applications for government licensure often require you to list all misdemeanor or felony conviction; even those that have been dismissed or expunged. When asked in this fashion, include all convictions. Government licensing agencies are allowed to consider all convictions to determine whether they are substantially related to the qualifications, functions or duties of the licensee. Failure to disclose this information will likely be viewed as an attempt to misrepresent or deceive the agency which may be considered worse conduct than the underlying conviction.
If you are facing any of these issues and need help, contact me.
~ Dan Koukol, Criminal Defense Attorney
