Definition of a Background Check: “A process of conducting an investigation into the existence or nonexistence of a past or present criminal event as applied to an individual’s personal history.”
In the same way as defining what a “criminal record” is, the task of explaining what goes into criminal background checks is multi-layered and complex. Regardless of that fact, this article aims to inform the reader of the most crucial and relevant aspects that relate to this topic. But there are a few things one needs to know about background checks when applied to criminal records:
FIRST: Background checks are not supposed to find every single event in a person’s history and report them as “public information.” Privacy laws exist in every state and they can be complex. Someone arrested but never charged with a crime should not be reported on in most circumstances. Also, cases that have been dismissed are also given privacy protection in many ways that people are not aware of. Nevertheless, background checks report these records many times when they shouldn’t be. This can be fixed however.
SECOND: There is no single “Type” of criminal background check. In the US, there are thousands of background check companies and literally millions of criminal records. Therefore, the type of search that should be conducted depends on the kind of record that is being searched. So the most important takeaway from that is that courthouses throughout the country have too many different recording procedures for there to be a unifying background check that fits all inquiries.
THIRD: If you are worried about your arrest, charges, or conviction from being discovered in a background check, there is no single way to find out for sure what will come up and what won’t. The best way to figure it out would be to analyze your criminal history by a professional to determine your chances and what you can proactively do to prevent your past from being reported.
What About Background Check Websites?
Websites that claim they have the most comprehensive and instant criminal background check technology available cannot guarantee accuracy and most certainly are not “up-to-date”. For the reasons you will read below, the only way to conduct a full criminal background check investigation is to canvas every single arresting agency in a given jurisdiction and to do the same for every single criminal justice courthouse relevant to an individual. Anything outside of that, you will find errors or false results.
That does not mean that criminal database companies don’t have value. For validation purposes and to begin investigating potentially accurate information, this is usually a starting point. But it can also lead to false positives and obsolete criminal record reporting.
Arrest Record on Background Check
There are over 15,000 police agencies in the country. Almost 18,000 if you include college, tribal, and other federal departments. Every time someone is arrested, detained, or booked into that police agencies custody, an internal arrest record is created and stored. For the most part, there is no central repository that obtains and stores these arrests on a national level or state level. Therefore, to conduct a criminal background check that can find out if someone has been arrested and for what they were arrested for, the background check company would have to know where to start looking in the first place.
Many employment screening and investigation companies start with a person’s living history to determine which jurisdictions would have had police contact with them. But this can also lead to too small of a pool of information if an arrest occurred far outside of where someone was living. Because of this, some investigators will expand their search to a 50-mile radius just in case.
Background checks that find and report a prior arrest can only do so under limited circumstances. This is especially true for people who were only arrested but were never charged with a crime. For those individuals, this could be a serious violation of their privacy if a prior arrest were to end up on a background check. To read more, go to: Will an Arrest be on a Background Check as a Criminal Record?
Criminal Charges on Background Check
As for arrests that do lead to criminal charges, background checks will either report both records or chose to report only the criminal charges. The reason for this is because criminal charges were filed through the local prosecutor’s office as official court records through the clerk’s office. While this now appears to be a public record subject to background check reporting, this is not case for everyone.
Criminal charges are filed daily on person’s who were never arrested. Many misdemeanors and low-level crimes don’t require formal booking. Sometimes called “cite and release” offenses, they are often filed by the local District Attorney or prosecution agency weeks after the offense was committed.
But when criminal charges are filed, the record exists within that court system. Every state has different rules on reporting criminal filings to a central repository that is compiled and reported back to national law enforcement agencies. However, criminal background checks that don’t involved government agencies will not have access to these systems.
For a background check to find and report a person’s past criminal charges, they have to know first where to look. Much like arrest records, a person’s living history is a good indicator of possible “hits” and will often yield results when searched. But without a central database to access, background check companies will often rely on commercial criminal database systems that compile massive filing records and sell the information as a subscription or one-time fee. The companies who offer these services are fiercely competitive and often claim all sorts of specialized information in their vast data stores. Many times, commercial database companies that offer criminal background check services simply purchase and resell the same information another competitor offers for a different price. The bottom line is that outdated and inaccurate criminal information can be reported with very little to validate the raw data.
The problem with some systems is that it is very difficult to update records where there has been significant events in the criminal case. For example:
Dismissed Charges on Background Check
Reporting criminal charges that were dismissed can be a serious problem. First, the person whose past has just been revealed could lose a job opportunity or jeopardize very important moment in their life. Second, the company that reported the background check could have violated serious privacy laws. These matters should not be taken lightly and must be thoroughly evaluated to see if someone’s criminal record was accurately reported on a background check.
Diversion or DEJ Charges on Background Check
Similarly, cases where someone plead guilty and was placed on diversion or (Deferred Entry of Judgment) “DEJ” are also given certain privacy protections when it comes to background checks. For these criminal charges to appear on a background check, there could have been a very serious mistake or violation of law and must be analyzed to prevent it from happening again.
Identify Theft Victims and Similarly Sounding Names
In the age of identity theft, many people may find they have a criminal record when in reality their name or date of birth was used by someone else to commit a crime. For those individuals, a very specific set of actions must be taken to correct these errors from reoccurring. Contact us to learn more about this.
Criminal Convictions on Background Check
The main purpose of most, if not all, background check procedures is to find past criminal convictions. Despite the countless differences in the 8,300 courts in the United States, most state’s will agree that reporting criminal convictions in background checks are appropriate given the purpose for which the report was being made. That does not mean that it is without exception. In particular, some people have gone through the trouble of petitioning the court (sometimes referred to as an “expungement”) to set aside their conviction and obtain a dismissal of the charges. For these people, background checks may not report the case under many circumstances.
Expunged Case on Background Check
The definition of “expungement” is different for every state. Some treat an expungement as a dismissal while others treat the case as being sealed from public disclosure. Furthermore, some states protect the privacy of petitioners more than other states. One thing is certain, however, for every state that has laws for some kind of expungement procedure, special protections and privileges are given to those persons who went through the trouble to petition the court for relief. This invariably applies to criminal background checks.
If someone has petitioned and been granted an expungement in the court where their criminal case occurred, a criminal background check should not report the case unless under very specific exceptions. To be sure, it’s best to have your individual case examined.
Special Considerations for Professional Licenses
One thing that separates the level of access a background check has to criminal records is whether or not someone has or will be applying for a professional license. Most licenses are issued through the state agency that regulates that industry. Because of their unique position and relation to government agencies, they will have access that commercial background check companies will not have.
Specifically, licensing agencies will often be able to access state repositories and similar law enforcement systems when doing their due diligence. The direct access they have, therefore, will not have a filter when it comes to privacy laws and they will be able to see arrest records, criminal charge filings, and any past records of conviction. Additionally, despite a successful petition to expunge a prior conviction, the entire record will be seen. That’s not to say that the efforts put into petitioning the court to set aside a guilty plea were without value. In many states and with many licensing agencies, the trouble of going through expungement will have a positive effect on the agency screening the potential applicant.
Medical Cannabis Licenses & Background Checks
After California’s passage of AB2679, those who have an interest in manufacturing hash oil will be pleased to know that it will soon be legal come next year (2018). But without a formal license application in place, the Bureau of Marijuana Control has provided some extensive guidance to would-be extraction artists as well as future owners of cannabis related enterprises. But just like the ATF and ABC (Alcohol Beverage Control), regulatory oversight will require background checks on those wanting to be be involved in the industry. The proposed California code of regulations lends some insight into what the bureau will be looking for which means those with criminal records should be very aware of what they need to get done before applying for a license to cultivate, manufacture, or distribute marijuana.
Criminal background checks will be required of all applicants for commercial cannabis activity licenses. This will apply to owners of the premises as well as those with ownership interest in the business (including within it’s definition of “owners” as one who participates in the direction, control, or management, or having financial interest in the premises). The proposed regulations, at this time, don’t require background checks for individuals with non controlling ownership interest. Publicly traded companies require those with 5% aggregate ownership threshold for having to conduct a background check. Passive investors (silent investors) could be treated differently than active investors but each case can be different depending on the circumstances.
While conducting background checks on license applicants, the bureau proposes to gather all pertinent criminal history information in order to make a determination for denial or granting of the permit. Something that each office will be looking for is whether any of the applicant’s prior criminal offenses were substantially related to the qualifications, functions, or duties of the business or profession for which the application is made. To make a thorough review however, the bureau will have had to consider evidence of rehabilitation from the criminal acts that are substantially related to the activities of commercial cannabis. Like most regulatory agencies, a case-by-case analysis will be the norm. Thus, it’s best to put your best foot forward to make sure your criminal record has been mitigated and/or modified prior to applying for license.
For those with prior criminal records (especially records related to marijuana sales), we advise seeking post-conviction relief that minimizes the scrutiny that may be put on your application once the record is disclosed to the bureau. To find out more about seeking dismissal, felony reduction, or a petition to expunge you record; Contact Us.
To discuss your case in more detail; we invite you to contact our offices:
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