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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 19711
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Hi Fran,I had a questions about how to label my class a

Customer Question

Hi Fran,

I had a questions about how to label my class a misdemeanor on my background check for a job.. can you help me?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 1 year ago.

Thanks for requesting me.

What do you mean by "labeling the mismeanor?" Did you get a diversion or deferral and was it dismissed? If so, did you expunge it? And finally, is your employer a private company or a city, state, Federal government position?
Customer: replied 1 year ago.



I believe it was a diversion and then it was dismissed.. This happened back in 2007. I was required to do so many hours of community service as punishment. My public defender at the time told me that after 5 years it would no longer be on my record. I was very young at the time and didnt ask the necessary questions that I should of.


I did not have it expunged.


It is a private university that will be employing me. They just sent me a background check request from a local company called Barada Associates. On the paperwork that I need to submit it asks "Have you ever been convicted of a crime? Do not disclose convictions that have been expunged or sealed by a court of law."


I am curious how I should answer this question.


Thanks for you help, Fran.

Expert:  Zoey_ JD replied 1 year ago.

Hi Sheena,

Diversion agreements in Indiana are sealable, after which you could deny the entire incident. But that doesn't happen automatically, at least not under the 2013 laws. I have no idea what the state of the law in Indiana was in 2007.

It's also possible that your lawyer got it sealed for you as part of your agreement with him when he was retained. He might know. But to be more certain, call the clerk of the court where your case was and ask him if the matter was sealed. He should be able to see that in the court's data base.

If he says no or isn't sure, you can order your RAP sheet from the state and see if it turns up on it. If it doesn't, it's sealed and you can deny it.

Do you recall whether you took a plea of guilty before you got your diversion program, or did you cut the deal directly with the prosecutor rather than the judge?

Customer: replied 1 year ago.

I am not sure - it was a public defender - and I recall him saying it would no longer be on my record after 5 years, however, I didnt ask any details after he said that.


How long would it take to have it sealed? What is the process?


I did search for my record through several background check sites and nothing would come up for any criminal charges, however, I did search through the indiana state police site and found my subject of record. Should i assume this means it is not sealed?


Do you have any idea what response the employer would have to this knowledge as far as moving forward with my job offer?


what would you recommend me doing? I need to submit my paperwork for the background check today.

Expert:  Zoey_ JD replied 1 year ago.


Here's the deal.

Indiana's diversion program "diverts" the case from court and you don't take a plea before a judge. If that's the deal you got -- and it probably is -- just say no on the application. The public defender's office will probably have this on their own computer files and can tell you whether you had to plea or not. Call them now.

If you did plead guilty first, then this would show up on your record as an arrest and a dismissal. If you are applying for a private job, they cannot ask you about arrests. They can only ask you about convictions. That means that the company that does the background check is not supposed to pass along the dismissal to your prospective employer.

So if you took a plea, you can still say no to the conviction, and if it turns up, you'll still be able to say it was a dismissal, not a conviction, and confirm that officially through court documentation.
If you took a plea first you'd want to get this sealed, which you'd do by getting a lawyer and petitioning the court. The Indiana law is new as to this, so I don't have forms for you.

If you did NOT take a plea, then the case was never filed with the court and you need do nothing further.

Customer: replied 1 year ago.



I just spoke with the courthouse. I was not convicted of the crime, because I did not plead guilty, however I was charged with it. So, (Sorry that I keep asking the same questions over and over) does this mean, I answer NO on the background check for "have you ever been convicted of a crime?"....


The information will come up in the screening - will this have an effect on the employment offer? Or will the agency conducting the background check no be able to forward the case charge and dismissal to the employer?



Expert:  Zoey_ JD replied 1 year ago.
Sorry for the delay. It's been a busy morning and I am just getting to my luch.

Yes, as I've said before, it's NOT a conviction. YOu can just answer NO. It shouldn't turn up at all, because you never pled guilty to it.

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