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I was caught for theft 3. I wasn't taken to the PD and it has since been dismissed (thru diversion). Is it an "arrest"?

Vancouver, WA |

A job application asks if I've ever been arrested and I don't know what to put.

Attorney Answers 4

Posted

You can be arrested without going to jail. When the police officer detained and questioned you about what happened, you were under arrest. When dealing with an employment application, it is always best to tell the truth. Often, prospective employers will understand youthful indiscretions or mistakes, but never will they permit deception on a job application. Unfortunately, in the modern age, it is quite easy to obtain records. I am not clear from your explanation if the matter was filed or immediately was diverted out of the court system. Either way, if you do not admit to the incident, it is very possible that you may not get the job or that you willl later be fired for deception when a record of the diversion is discovered. There are several ways that criminal records and even arrests can be cleared from your record. I highly recommend that you contact an experienced criminal defense attorney to see if your record can be cleared.

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Asker

Posted

Can a record be cleared to the extent that it would not show up even when going thru a background check for a job as a police officer or firefighter? Or is there always a way for these agencies to find it?

Anna K. Woods

Anna K. Woods

Posted

Unfortunately, there are many ways to obtain criminal records. Even if a court orders a charge to be vacated and deleted from the official record, it will probably remain on any federal records. Also, there are many unofficial records that do not have to honor court orders. It is a difficult situation. I do encourage you to contact an attorney.

Howard M Lewis

Howard M Lewis

Posted

great counsel

Elizabeth Sarahi Fasano

Elizabeth Sarahi Fasano

Posted

While some of the advice has been in general excellent, I have had many clients whose juvenile and other records I have cleared, for whom we have been successful in completely removing associated criminal history information from both state and federal law enforcement databases following post-conviction relief under both the WA felony and misdemeanor vacate record of conviction statutes, as well as the juvenile sealing statute. The follow-through on this, however, does take quite a bit of time (up to a year from entry of the state order vacating, sealing, etc., the conviction) for the criminal history information to be purged from FBI criminal history databases. It often requires follow-up by an experienced attorney who is familiar with post-conviction relief procedures and the interplay of state, federal, (and sometimes international) law on these important privacy interests. The WA juvenile sealing statute (RCW 13.50.050) and case law interpretting it specifically provide that when relief is granted under its authority, it shall be "as if it never occurred"; and I do not believe that persons convicted of every minor juvenile offense should disclose such offenses for which they have been granted relief under the statute on every subsequent job or housing application, etc. The whole purpose of this and similar statutes is so that one (occasionally two) time and/or youthful offenders can be protected in such a fashion from having to redisclose the mistakes of their youth over and over again, and move forward with their life. There are some important exceptions to this general advice of simply affording yourself of the relief provided by the applicable vacate/sealing law of no longer disclosing the affected conviction. Certain professions (for example, attorney, medical license, likely law enforcement, etc.) carry with them a much higher standard and a duty of absolute full disclosure of any violations of the law, whether subject to vacation, "expungement", sealing, etc. Further, counsel is correct that a record, if discovered after being denied could look worse than the offense itself. The important thing is to know what your record out there that is discoverable about you shows before you answer these types of questions. It is especially important to seek the advice of counsel if you are hoping to go into one of the professions mentioned (or something similar). You can request an NCIC print-out on yourself to see what shows up on your federal background check by following the procedure on the FBI website. It takes 6 weeks to 6 months to get back. A quicker method to see if your record is still public in the court/jurisdiction you were originally arrested or convicted in is to go to the courthouse and request a copy of any docket listings or records pertaining to yourself that is public. You can also perform a WA Courts database search on yourself st www.courts.wa.gov, case search. You should note that WA State Patrol criminal history reports available online only contain adult felony and gross misdemeanor offenses or serious juvenile offenses in WA, so this would not be a good method to see what still might be public for your offense. (*Finally, you should contact an attorney to assist you further, but I believe a record with only one juvenile shoplifting offense subject to diversion is eligible not only for sealing, but actual destruction of the file, on motion upon reaching a certain age, under RCW 13.50.050, if you have no other offenses.)

Posted

You should follow attny Woods outsanding counsel and take care.

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.

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Posted

You need to have someone check with law enforcement and the juvenile system to see what type of record happened for the diversion. If you lost your license due to the diversion then you can rest assured that there is a record of this case and you need to divulge all info about this case to your potential employer so that it comes from you. In the future you will need to seek the case vacated from your record and then sealed in juvenile court. If you are talking about district court and you are an adult there are means to try and clear this from your record too but it is complicated and not easy. Get an attorney

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Posted

**Note: Please first see my comment to Attorney Woods' Answer below, as there are many other components to my response re: remedies, records, and duties of disclosure. However, if you have only one juvenile offense which was subject to diversion, you might want to review the portion of the juvenile sealing statute below as to a remedy which may apply in your situation. [*Yes, it still an arrest. No, it would not be a conviction under the statute, if the below applies, or according to WA Supreme Court case law. Your duties of and interests in disclosure regarding even a sealed conviction may vary with your situation, as set forth in my longer comment below. If you want to go into Law, definitely get an attorney to verify and advise you on all responses you give re: this record.] --

 RCW 13.50.050 (in possible pertinent part, provides)
    (17)(a)(i) Subject to subsection (23) of this section, all records maintained by any court or law enforcement agency, including the juvenile court, local law enforcement, the Washington state patrol, and the prosecutor's office, shall be automatically destroyed within ninety days of becoming eligible for destruction. Juvenile records are eligible for destruction when:

     (A) The person who is the subject of the information or complaint is at least eighteen years of age;

     (B) His or her criminal history consists entirely of one diversion agreement or counsel and release entered on or after June 12, 2008;

     (C) Two years have elapsed since completion of the agreement or counsel and release;

     (D) No proceeding is pending against the person seeking the conviction of a criminal offense; and

     (E) There is no restitution owing in the case.

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