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I am in Indiana and I signed and paid a diversion agreement for underage drinking. Will it show on background check?

West Lafayette, IN |

I believe I was told it would be expunged. Happened several years ago. Do I need to check "yes" on criminal history on job applications?

Attorney Answers 2

  1. A diversion agreement if successfully complied with allows you to state that you have no conviction of underage drinking. As far as the charge is concerned, the fact that you were charged and prosecuted with underage drinking can show up. However, you will be able to state that the charge was dismissed. To what effect a charge that is later dismissed affects a potential employer or college admissions staff will depend upon the entity involved.

    When filling out a job application it is therefore important to read the question carefully as to what is being requested. If you were originally arrested on the underage drinking charge and the question asks if you have ever been arrested you will have to state in the affirmative. Conversely, if you were not arrested and asked if you have ever been arrested or convicted of a criminal offense, you would be able to respond in the negative.

    Expungement in Indiana is a limited means of relief that allows for a criminal record including an arrest record and charge to be destroyed if a case was dismissed in certain situations for one with no prior arrest record. As it presently stands Indiana criminal law does not allow for an expungement of an arrest record where the dismissal is the result of a deferral agreement absent other factors.

  2. Typical Pre-Trial Diversion agreements DO NOT include expungement. You should read the agreement carefully. They will usually result in the charge being dismissed. Expungements are controlled by a very specific statute in Indiana. I you do not qualify under the statute (most cases do not) then you would not be entitled to the record being expunged. Although you can state that you do not have a conviction, there will still be a record of your arrest or citation and disposition will show "dismissed". Therefore, whether or not you have to check yes depends on the specific question on the application. "Have you ever been charged with a crime?" and "have you ever been convicted of a crime?" are two entirely different questions. If the case was dismissed because you successfully completed a Pre-Trial Diversion program, then you have not been conviction, but you were charged.

    This response is meant to provide general information only and should not be considered to be legal advice. This information is not meant and should not be construed to be the formation of an attorney client relationship.

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