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MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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I have a legal question pertaining to a prior arrest in which

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I have a legal question pertaining to a prior arrest in which I was fingerprinted on a computer and the case was immediately dropped (a misdemeanor).

There is no official record (I have accessed the website of MT in which this happened) of the arrest, and was wondering if it is true that in general cases which are dismissed are either not recorded as in this case, or if they are recorded but not public record.

In this case would my fingerprints be actually on file since it lists no arrest? (It was being thrown out approximately right after or around the time I was fingerprinted.)

Additionally if charges were refiled is it ok to assume they would show up as public record?
Hello and thank you for your question.

Although under the circumstances, the record of the arrest may not be public, it would remain available to law enforcement and the courts as part of your criminal record. Your fingerprints would continue to be on file as well.

In general, the public may receive arrest and prosecutor/court information on felony charges and misdemeanor charges, but information is limited by Montana’s privacy laws. Criminal records that have been deferred and later dismissed cannot be released to the public.

Please feel free to ask any follow-up questions.
Customer: replied 4 years ago.

In this instance would it appear on an employment check, whether for public/private/state employment?


What about on the national level as a part of fingerprinted background check for a company, or a teaching position?


Thank you very much.

Thank you for your response and the opportunity to assist you further.

The Montana Dept. of Justice states that only law enforcement agencies may obtain full criminal histories even with a fingerprint check. See DOJ access site here

The site confirms that disclosure includes arrests for felony or misdemeanor charges and court information relating to those cases, but public access does not include deferred or dismissed charges. However, private background check companies may investigate and obtain court records which would reflect dismissals and discharges, especially if an arrest is disclosed on an application. Montana's administrative rules state that questions about an applicant's arrest record could lead to suspicions of discriminatory intent, and therefore should not be asked, but it is not prohibited.

The arrest and disposition might show up in an FBI background check. If the fingerprints are related to an arrest, the FBI Criminal History Summary includes name of the agency that submitted the fingerprints to the FBI, the date of the arrest, the arrest charge, and the disposition of the arrest, if known to the FBI. The process to obtain criminal records from the FBI can be found here The FBI's authority to disclose criminal history information in employment background checks, however, is limited to officials of state and local governments for employment, licensing, which includes volunteers, and other similar non-criminal justice purposes, if authorized by a state statute which has been approved by the Attorney General of the United States.

Let me know if you need any further information.
Customer: replied 4 years ago.

Thank you for this information. It appears for teaching purposes or a job with a background check I may say that I was indeed arrested, but it was dropped and there were no criminal charges, which would then be reflected in an absence of a record for public access.


I wouldn't lie, but this has brought me confusion about what I can/should say with regards XXXXX XXXXX prior incident, and I would like to keep it simple.


What is typically said, if I do go for employment at a job requiring this, and there is no record? I would agree I should mention that I was arrested, but given that nothing came of it, would not like to go much further with detailed information, but to say all charges were dismissed.


Are they obligated to then after checking this information not discriminate in the hiring process given it was dismissed?


Is there a better way of putting this?


This will be my last question for now. You have been quite helpful, and so I will keep the question open in case I think of any other pertinent questions.


Have a nice day.

Thank you for your response.

It is a bit confusing, but generally the pre-employment application inquiry breaks down into arrests and convictions. Most employers will only ask about convictions and you can truthfully answer you have no convictions and no record. Although discouraged from asking about arrests, if an employer does ask, you should likely disclose the arrest. Usually, there is some opportunity to explain and you are correct that less detail is probably best. Stating the case was dismissed or charges dropped is fine and accurate.

In Montana employers cannot use arrest records to exclude persons from employment unless there is a business justification. If it can be demonstrated that the applicant engaged in the conduct for which he or she was arrested and that conduct is job-related and relatively recent, the exclusion might be justified and not unlawfully discriminatory.

Here is the full administrative rule on pre-employment inquiries in Montana

I am glad I could be of assistance. Feel free to ask additional questions as they arise.
MyraB and 2 other Criminal Law Specialists are ready to help you
Customer: replied 4 years ago.

I have one final question, pertaining to the nature that something positive could have come out of this.


At the time of arrest would my fingerprints have been compared to all previous unsolved crimes, or only for certain districts, and how soon would such a match have been made, or is this not done in general?


For instance, would they need suspicion to compare fingerprints from the any past crimes, or would it be done automatically as a part of their automated system?


I am asking because this could mean that I can be certain that there is no prior history given this event. I am still willing to deal with the circumstances as they may be, but it may allow me to lay one thing to rest, something I have since given up doing.


Thank you for your response.

At the time of arrest your fingerprints would likely have been compared to all previous latent fingerprints obtained from the scene of unsolved crimes in the jurisdiction, termed the unsolved latent file. Much depends on the search capabilities and current technology of the jurisdiction, but these searches are now routinely done. As far as whether a similar search would be done against the unsolved latent file of neighboring jurisdictions depends on interoperability and agreements between the jurisdictions and is sometimes only performed on an ad hoc basis when there is reason to search in a particular jurisdiction.

You can find further information on fingerprints, database searches and interoperability here
Customer: replied 4 years ago.

Under the circumstances, and the nature of the crime and the case being thrown out, if they did not have interoperability with another state, would it be likely or true that they would resolve no potential matches?


Are there any factors other than this you can think of that would mean that it would have never been searched in a state for which it is not interoperable with?


And given that they would have no awareness of jurisdictions to search, unless they had extra information which they did not, is it plausible that no search would be done and these prints would never be matched given the interoperability condition and the lack of a reason, and the idea that at the national level they are not routinely searched and compared to all latent prints?


Thank you, you have been very informative, and I think this final question will be all I need.

Thank you for your response.

I have to be honest and tell you that this is beyond my field of knowledge and might be better addressed to an expert in law enforcement. But it seems to me that checking the unsolved latent files of individual states and jurisdictions against identified arrestees in a national database is a progressive project. As technology and communication becomes more streamlined and cost efficient, there will be more opportunity to match latent prints of unsolved crimes with the known fingerprints of those arrested. However, such capability seems to still be in process, and at this time the capabilities appear to be limited by agreements and software compatability. So, your conclusions seem reasonable. But, again, I am not an expert in this area.

If you are concerned about the dismissed charge being brought forward again, the applicable statute of limitation may help to put your mind at ease. Generally, the statute of limitation for a dismissed charge is the same as for the offense, meaning if the statute of limitation is 3 years, then even a dismissed charge could not be brought again after 3 years from the date of the offense. However, I would need to know the charge in order to provide you with the applicable statute of limitation. It's just a thought.

Let me know if you need anything further.
Customer: replied 4 years ago.

Well, I was arrested around 2006 in October for 'criminal trespass'. As far as I know in the state of Montana it is a misdemeanor, and the SOL had passed at the time I did the Official Criminal History, in 2012, for which it would be public record.


If you confirm this, I would like to close our discussion. I am satisfied, so thank you.

The statute of limitation for misdemeanors in Montana is 1 year, so long passed.

You're welcome and I wish you well.