The Common Law: Does An Old Arrest Show Up on a Criminal Background Check?

What's best to do after a case gets dismissed

When I was in college about 10 years ago, I got busted for pot. Luckily, my lawyer got the charge dismissed after I did some community service and took a drug class. However, I recently filled out a job application, and my potential employer asked me a bunch of questions about the charge. I was surprised because I thought that it was dismissed. What's going on?

While a dismissal is an excellent outcome to any criminal case, it doesn't change the fact that you were arrested for marijuana possession 10 years ago. Most people don't realize that when companies run criminal background checks, it's the arrest records that they're searching, not the final outcome of your case. Oftentimes, just seeing that you've been charged with a criminal offense is enough to deny you a job, even if that same record shows that the charge was ultimately dismissed. How's that for innocent until proven guilty?

Criminal records are created the moment you're booked into jail. The sheriff, arresting police agency, prosecutor's office, and court clerk each maintain separate files containing your name and detailed information related to your criminal charge. But it's the Department of Public Safety (DPS) who's probably most responsible for employers later finding out about a criminal charge, as DPS is the official compiler of criminal history data in Texas.

The good news is that if your case resulted in a dismissal, there's a legal procedure called an "expunction" that allows people to erase those damaging arrest records. While it's not quite the same as Marty McFly using the DeLorean to change the past, an expunction is the closest thing in the law to time travel. Once a court grants the expunction, you're allowed to deny that the arrest ever occurred. In today's hyper-connected world where companies run background checks with the click of a button, an expunction is essential if you don't want a past indiscretion to negatively affect your current earning potential. Check out next month's column where I'll explain the ins and outs of how to expunge your arrest.

Please submit column suggestions, questions, and comments to thecommonlaw@austinchronicle.com. Submission of potential topics does not create an attorney-client relationship, and any information submitted is subject to being included in future columns.

Marrs, Ellis & Hodge LLP, www.mehlaw.com.

The material in this column is for informational purposes only. It does not constitute, nor is it a substitute for, legal advice. For advice on your specific facts and circumstances, consult a licensed attorney. You may wish to contact the Lawyer Referral Service of Central Texas, a non-profit public service of the Austin Bar Association, at 512-472-8303 or www.austinlrs.com.

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