Criminal Background Question on app

luvthat48 · 09-09-2012, 06:11 PM

I had another thread on this board regarding my son's criminal charge. He was charged with DWI 2 years ago and it was reduced to misdemeanor reckless driving. Just received paperwork that the DWI charge itself has been expunged from his record. All that will show now on criminal background checks will be the misdemeanor reckless driving.

On one of his applications this is how the criminal background question is worded...

"For the purpose of the following six questions, "crime" or "criminal charge" refers to any crime other than a traffic-related misdemeanor or an infraction. You must, however, include alcohol or drug offenses whether or not they are traffic related. You must disclose criminal charges or crimes dismissed as a result of a deferred prosecution agreement or any other arrangement under which you accepted responsibility for an alleged crime. Complete honesty is expected"

I am confused. This was a drug/alcohol related charge, but resulted in a misdemeanor traffic offense. Also does "other arrangement" mean expunged? Could they have worded this a little more vague??? I have no clue how to proceed. I do not want them to think we are hiding it - we will list it if we need to.

What do you guys think??

fishymom · 09-09-2012, 06:18 PM

Doesn't sound vague to me at all. It clearly states that all criminal charges must be reported, even if it was dismissed, pretty clear to me.

luvthat48 · 09-09-2012, 06:33 PM

Where does it say dismissed?

It was not dismissed...expungment is not a dismissal. The "charge" of DWI is erased from the file - can only be seen in extreme situations and only by certain officials. This was not a "deferred prosecution agreement" either. We had to apply for the expungement and it is a court order granted to remove it from the criminal file.

The question already states we do not have to report misdemeanor traffic offences so the reckless driving would not need to be reported from my understanding. It is the charge of DWI that I do not know how to handle due to the "any other arragement" part of the question.

Would be nice to hear if anyone has encountered this.

marbling · 09-09-2012, 06:35 PM

Was he charged with DWI and *that* was reduced to reckless driving? Did they dismiss the DWI at the time IF he pled to reckless driving? If so, you would have no reason to include it on your app.

Anyone can be charged with anything. (Well, they can.) What counts is what he was actually guilty of, or what he was sentenced for. That's what they are asking--they want to know if one pled guilty to a crime and received a deferred judgment. A deferred judgment basically means you fulfill the court's order, usually in the form of therapy, community service, restitution, etc., and if you stay out of trouble for a certain amount of time, that charge will be dismissed as if it never happened.

That is NOT the same as being charged with DWI, then going to court and pleading guilty to reckless driving in exchange for the court dismissing the DWI charge.

(Seven years' experience in the criminal court system for both a prosecutor and a prominent criminal defense attorney.)

luvthat48 · 09-09-2012, 06:42 PM

Nothing was done in exchange for...he was charged with DWI due to car accident. He plead guilty to misdemeanor reckless driving. The DWI would have stayed on his record (as the original charge) had we not applied for the expungement. Now the charge cannot be seen if a check is run just the reckless driving can be seen.

No community service or anything like that, just a fine.

Does that make it clear as mud???

luvthat48 · 09-09-2012, 07:22 PM

marbling

I re-read what you said. He did plead guilty to a reduced charge. But from what our attorney told us the original charge could still be seen if a criminal background check was performed. That is why he applied for the expunction.

We do not want to hide anything or mislead the school, but if we do not have to tell them about the original charge I would like to leave it off. I have no problem with the reckless driving part (well I do, but not as far as listing it on the application!!)

eastcoascrazy · 09-09-2012, 08:07 PM

I'm curious whether a finding of "nolle prosequi" would need to be divulged.

toblin · 09-09-2012, 08:12 PM

Expunged means expunged. Reckless driving is the same flavor as speeding, a misdemeanor. Sometimes a judge or a prosecutor will give someone a break. But remember, police are trained to over charge people they arrest as a tactic to make the people confess guilt to lesser charges they are not guilty of. Police and prosecutors know it's the most expeditious and economical course for the person being charged. Who can pay pay thousands in legal fees on a crap shoot when a few hundred dollars will make this all go away. It's all about compiling arrest and conviction stats.

emeraldkity4 · 09-09-2012, 08:36 PM

Expunged means his records are sealed, I think?
Although he pled down to reckless driving, he still was arrested for DWI.
If the DWI actually had gone away with the reckless driving sentence, he wouldn't have needed the records to be expunged..

Did he go through alcohol treatment, or was the biggest concern car insurance rates?

luvthat48 · 09-09-2012, 08:55 PM

Yes expunged means that certain item is sealed, which in this case is the DWI charge.

He did not have any treatment, community service, nothing...just a fine. Insurance rates did go up slightly due to the reckless driving based only on the points associated with that (4 points on license and 4 for insurance). Those will all fall off after a certain amount of time.

This was a one time horrible mistake and resulted in a car accident (totaled our car). This actually happened 2 years ago while trying to fit into a group of older kids. No issues since then. This awful experience has changed my child for the better... thank goodness! They were going to dismiss the whole thing as the blood results never came back (still have not!!), but due to the severity of the accident the judge felt a reduced charge of reckless driving was appropriate. I agree he was very reckless!!!

I am fine with listing the misdemeanor on the application. I am just not sure about the DWI charge since it is now sealed (expunged). I have emailed his GC to see if she can call back the college he is wanting and give the more detailed information and see what they say.

younghoss · 09-09-2012, 09:04 PM

As a layman, these 2 sentences clinch it for me:
"You must, however, include alcohol or drug offenses whether or not they are traffic related." and "Complete honesty is expected".

While the S got no alcohol conviction, he was charged with an alcohol offense.
So imo, what he was "guilty of" is not the only consideration. How zealous a policeman may be is also not relevant to answering the app question truthfully; although it could be seen as a rationalization.
Expungement means a hiding of charges/convictions- it does not mean going back in time to avoid getting charges.
How likely it is the school might find out, how honest a person wants to be on an app are interesting, but not what Op is asking.
I'm with fishymom, post 2.

marbling · 09-09-2012, 10:09 PM

>>>Nothing was done in exchange for...he was charged with DWI due to car accident. He plead guilty to misdemeanor reckless driving.

You have answered your own question. I would not report the DWI, as your son did not "accept responsibility" for it. It was also not dismissed as part of any agreement. I don't believe this is even a technicality that you're using to avoid reporting; it doesn't fall under the scope of their question.

How unfair of the school to deliberately try to circumvent a valid legal procedure.

emeraldkity4 · 09-09-2012, 10:21 PM

He was arrested & charged for DWI.
It will be on his record except for the expungement.

Quote:

North Carolina does not allow for expungement of a DUI conviction.* The state does allow for convictions to be sealed so that they may only be viewed by court representatives, but this is only allowed in very limited circumstances.

However, North Carolina does allow a one-time expungement of a DUI arrest and charge.* This means that if a driver is arrested and subsequently charged with an impaired driving offense but the case is dismissed or the defendant is found not guilty at trial, the record of arrest and charge may be expunged.* When the record is expunged, it will no longer show up on the individual’s record, which could have significant impact on the person’s life.* Even without a conviction, an arrest and charge of an impaired driving offense can be embarrassing for an individual.* Having this on your record can also negatively impact an individual when applying for a job, applying for admittance into a school, or even when hoping to rent a car or apartment.

In order to have an arrest and charge expunged, the driver must file an application in civil court in the county in which he or she was charged.* This may also require the individual to serve notice on certain other parties, such as the district attorney, in order to notify them of the application and any upcoming hearing on the application.* If the driver has not had a previous expungement and has not been convicted of a felony, the court will usually be required to expunge the charge and arrest.* This may also require expunging any DNA or other evidence that was collected as a result of the arrest and charge.* While hiring legal counsel to assist in the expungement process will ensure that all requirements of the process are properly fulfilled, it is not necessary to do so in order to have parts of an individual’s record expunged.

luvthat48 · 09-09-2012, 10:27 PM

"How unfair of the school to deliberately try to circumvent a valid legal procedure."

I agree!! We have a legal document signed off by a judge that states the charge (DWI) is sealed and there are only a few select people that can view it. What is the point of going to this expense (not to mention 6 months time) to have this expunged if we have to list it on applications any way.

We do not want to be dishonest. We just do not want our S to be judged unfairly. That person is not who he is now. I just checked the application (which is online) and there is a place to type 150 words about the charge/conviction. I do not think we can portray who he is now in that many words as well as describe the incident. How do you attach something to it?

Sorry to be so needy, but our S is a first generation college student and we are just at a loss to this whole procedure.

sylvan8798 · 09-09-2012, 10:55 PM

Maybe you could ask the lawyer who helped you get the charges expunged? Surely they have seen these types of questions before.