What to Worry About for a Pre Employment Background Check.

Looking for a new job and worried about a pre-employment background check? You are not alone. Finding out what information is available about you to potential employers, and taking corrective action early. may prevent the loss of a valuable job offer.

Here is a review of the problems that can show up on a background check, possibilities for corrective action, and info on how to Do Your Own On Line Background Check.

At TrafficCourtPros.com we have noticed a marked increase in the number of people who have been denied a valuable job opportunity because a pre employment background check revealed a bench warrant, misdemeanor failure to appear suspension, or pending probation violation.

The new corporate appetite for screening information is fueled by easy, and cheap access to criminal history reports and background checks on the Internet. Employers are using these checks as a way to eliminate applicants with pending court problems.  However, many of the problems that can cause the loss of a job opportunity can be solved before a loss of a job opportunity.

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Job Applicants Forced to Consent to Invasive Background Screening.

Unfortunately, applicants have little leverage to parent hiring decisions based upon information found on background checks.

California’s State Constitution does include an explicit right to privacy in its list of citizen rights (Article I, section1), and a citizen may bring a lawsuit for damages if this right is violated. But generally, this right does not apply to pre employment background screening.

This is due to the fact that many employers require applicants to consent to invasive background screening by signing a waiver on a job application. It’s in all of that fine print you sign on the bottom of a job application form. In short, many companies require job applicants to give up any legal rights to privacy they have to limit pre employment screening.

If you give them permission, a potential employer may search for criminal records, do a credit check, and require drug testing.

There Is No Standard For Background Checks.

There is no standard “Background Check” that all employers use. Employers may use any number of methods and sources to do a background check. But the common denominator in all of the varied methods is that they search public criminal history records maintained by state and federal courts, and law enforcement agencies.

All adult criminal records are public information and available to anyone unless sealed by the court under special application.

Infractions Do Not Appear In Criminal History Reports.

In general, job applicants do not need to worry about violations that are classified as “Infractions”. An Infraction is technically not defined as a crime, and carries only a fine as punishment.

Because infractions are not crimes, a defendant only gets a limited right to contest an infraction. The court can convict a defendant of an infraction even if the defendant never shows up. This is not true of crimes.

In general, a job applicant does not need to disclose the fact that they were found guilty of an infraction (such as speeding) to an employer.

But misdemeanor problems, including a failure to appear on an infraction, does cause the loss of job opportunities.

Misdemeanor Convictions and Felony Convictions Are Crimes.

Misdemeanors and felonies are different than Infractions. They are crimes, and generally must be disclosed to a potential employer if the applicant is asked. Such convictions will appear on background checks and can cause disqualifications.

What Shows Up on a Background Check?

Most pre employment background checks will reveal the following problems:

Felony Convictions: nearly all felony convictions will be available to anyone who knows where to look.

Misdemeanors Convictions: Misdemeanor convictions are public records, and can easily be found by anyone doing a search for a criminal history. However there are some exceptions.

Common misdemeanors that appear on criminal history reports available to the public include Driving on a Suspended License (Vehicle Code section 14601.1 -14601.5); and Driving Under the Influence (DUI), Vehicle Code section 23152.

Some violations can also be infractions if so designated by the court at the time of conviction and are designated as “minor traffic offense” by the court and generally do not cause pre-employment disqualifications.

Violations such as driving without a valid license (Vehicle code section 12500a) is an example of a violation that can be a misdemeanor or infraction.

Active Probation Will Show Up.

Probation is generally a period of court supervision that is granted in place of a jail sentence. Probation usually includes a limited time period (months or years) and terms that are court orders the defendant must satisfy. Active probation periods will appear on a background check and can cause disqualification.

Outstanding Warrants Are a Common Cause of Job Applicant Disqualification.

The court needs the defendant (or an attorney for the defendant) in court to complete a misdemeanor conviction. Because of this, when there is a misdemeanor charge, and the defendant fails to appear for a hearing, the court will issue an arrest warrant or bench warrant to get the defendant into court.

When an employer discovers a job applicant has an outstanding bench warrant or arrest warrant, generally, it is cause for disqualification of an applicant immediately. From the employers point of view, they do not want to hire someone and worry that they will be arrested and miss work, or worse yet, be arrested at work. Clearly, employers prefer applicants without a warrant.

But some employers will give an applicant some time to clear a warrant problem once discovered.

How To Find Out What Information Is Available on You.

Knowing what is out there will help a job applicant prepare for the disclosure, and may allow corrective action before the employer makes a disqualification. Here is how to get the info yourself:

1. You can do your own Instant Background Check.

2. You can check with the court where you know you have a problem.

3. If you believe you may have a warrant or missed a court date, you can contact the local county sheriffs office to do your own warrant search, or call the court clerk where your case is located. Some courts and sheriffs offices allow warrant searches on-line.

4. You can find warrant and case information on anyone on line in counties such as Riverside, San Bernardino, San Diego, Orange County, and many others. Visit TrafficCourtPros.com for more free warrant search resources.

What Types of Background Problems Can Be Corrected?

Expungements Can Clear the Record of Some Convictions.

Some misdemeanor convictions and non violent felony convictions can be “expunged” – which means removed from if the courts records. To get an expungement, you must petition the court for termination of probation and dismissal of the case.

State law determines which convictions can be expunged, and generally the court requires that a defendant have proved himself or herself rehabilitated from the criminal behavior.

An application for an expungement commonly takes 60-90 days, but can take longer depending on the court.

Probation can be terminated early in some cases where the defendant has stayed out of trouble for most of the probation period. Request a free case review to get more info on this possibility for a specific case.

Bench Warrants Can Be Cleared In Court.

Misdemeanor Warrants can generally be fixed fast. Because warrants are issued from the court because a defendant has not appeared in court, once a court appearance is made, the court can recall the warrant.

In most misdemeanor cases, an Attorney can go to court for a defendant to clear a warrant. In serious misdemeanors, or felonies, the defendant must appear with or without an attorney to clear a warrant.

On some warrants, jail time is required. But once the appearance is made and the court satisfied, the warrant can be recalled.

The amount of time it takes to clear a warrant varies from case to case. But in many cases, a court date for a warrant recall can be scheduled within a few days.

What Can An Applicant Do If A Potential Employer Finds Something?

Many companies will give an applicant time to clear a problem succh as a misdemeanor warrant or probation term. Applicants can negotiate for this time by asking for it. And any applicant in this situation would be wise to tell the employer exactly what they plan to do, and remind the employer of the potential value they can still bring to the company.

Driver History Reports Are Not Criminal Records.

However, applicants should be careful not to confuse a criminal history report from the court or law enforcement with a Drivers History Report from the Department of Motor Vehicles. A drivers history report or “DMV record” will reveal all moving violations, whether they are infractions or misdemeanors (including speeding, failure to appear, etc).

If you have a warrant you need to clear, probation you need to terminate, or a conviction you want to try to expunge, get a Free Attorney Case Review from TrafficCourtPros.com.

If you want to do your own Instant Background Check, I recommend: www.Gov-Resources.com

-Christopher Dort, Esq.

Editor Email: cdort@dortlaw.com

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Update on How To Handle VC40508A Failure to Appear Cases in Santa Clara County

After a recent visit to the Morgan Hill Courthouse in Santa Clara County, and lengthy discussion with the court clerk and her supervisor(s), I discovered that the Santa Clara traffic courts are dealing with missed court dates on traffic citations a bit differently than other courts.

Here is an update on what I found, and my recommendations on how to handle a traffic citation with a failure to appear charge in San Jose, Palo Alto or Morgan Hill traffic court.

When a person misses the court date listed on the bottom of a traffic ticket in Santa Clara County Traffic Courts, the court does the following:

They add a misdemeanor failure to appear charge known as Vehicle Code section 40508A (aka VC40508a); and

Increase the total fine on the whole case.

They do not issue warrants for missed court dates on infractions (in general - some exceptions), and may not place a VC40509.5 hold on the persons drivers license as most other courts do.

However, VC40508A (failure to appear violation) can be an infraction, or a misdemeanor.  It always starts as a misdemeanor, but most courts reduce it routinely to an infraction, add a “civil assessment” fine and refer the total bill to a collection agency such as AllianceOne or GC Services.

When the court reduces the VC40508A to an infraction, the defendant has almost no rights to challenge the violation, because it is considered a civil, not a criminal problem (like a parking ticket - if its a civil fine, you are screwed). But with a misdemeanor, a defendant has more rights.

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The label of misdemeanor or infraction does make a real important difference for many people.  A misdemeanor conviction means you have a criminal record, and may have immigration consequences (such as denial of a permanent resident status).

Some people may be required to report a misdemeanor conviction to their employer or licensing agency, and some may lose employment or business opportunities if they get a misdemeanor conviction.

Misdemeanors are more serious than infractions, because they carry the possibility of jail time.  The US Constitution guarantees the misdemeanor defendant specific rights called “Due Process Rights” in the 4th, 5th and 10th Amendments.  The most important of these Due Process rights is the right to a jury trial when a person’s freedom is at risk.

In Santa Clara, it is different.  They have their own view.

Here, they refuse to reduce the misdemeanor 40508A violation to an infraction when a person pays the claimed fine by mail or by phone.   They don’t tell you that you have the right to a jury trial, or other Due Process rights you have when accused of a misdemeanor.  They just take the money and enter a misdemeanor conviction.

Santa Clara is very unique in this regard.  Most other California Courts interpret Due Process law as requiring that a defendant in a misdemeanor case actually “knowingly and voluntarily” give up his/her right to a jury trial before there can be a conviction.  Usually this happens with a misdemeanor “Waiver Form” that the defendant must sign and present in court.

Santa Clara ignores the waiver process for 40508A misdemeanor cases and does not tell defendants with VC40508a charges that they have the right to a jury trial.  In fact, it’s quite the opposite - the court clerks hide this fact from the defendants - along with the other Due Process rights guarantee to all misdemeanor defendants such as the right to confront and cross examine witnesses.  In my opinion, it’s a tricky way to screw people on traffic citations.

But as it turns out, it’s a good process for a defense attorney like myself, because there is work that can be done that will make a difference for the client on these cases.  Specifically:

Most courts will reduce the failure to appear charge to an infraction to prevent the defendant from demanding a jury trial, and from having the ability to refuse to allow a commissioner to hear the case.

By reducing the VC40508a to an infraction, most courts basically prevent defendants from having the rights associated with a misdemeanor, and thereby make it difficult for the defendant to get a court date on a failure to appear case.  They refuse to give them a court date, and just refer the fine to a collection agency for payment.  Because there is no threat of jail time with an infraction, they do not have to give the defendant a trial.

In Santa Clara, because they refuse to reduce the FTA to an infraction, defendants have the absolute right to an Arraignment court date, and to a jury trial.  Misdemeanor defendants also have the right to refuse to allow a case to be heard by a commissioner, and may demand a real judge.

Because of these rights, and the existence of a misdemeanor charge, a defendant with an FTA case in Santa Clara can go into court, get an arraignment date, and demand a jury trial with a real judge. And an attorney can do all that work for a defendant - and make the threat of wasted time in a jury trial credible.  If the attorney is getting paid to do a trial, its going to happen.

And my experience has shown me that courts do not want jury trials over infraction FTA cases.  It would be a giant, tremendous waste of the court’s time, and of the time of the every citizen who would have to spend 2 days in jury duty to hear a traffic ticket case.  When presented with a demand for a jury trial on a VC40508a case, it would be my expectation (and has been my observation in the past) that the court would reduce the misdemeanor to an infraction at that point to prevent a useless jury trial.

So in the future I will be recommending to my own FTA clients in Santa Clara that they do not pay they pay the Failure to Appear fine the court says is due, because it will result is a misdemeanor conviction.  Rather, I will usually recommend that we schedule an Arraignment, refuse the commissioner, and demand a jury trial.

If the court reduces the misdemeanor to an infraction to prevent a jury trial - Great! Good result.

If the court is stubborn and allows the jury trial - Great! Let’s see if they can get 12 every day people to vote for convcition. They need 12 citizens to vote gulty to win.  I only need 1 crazy person to vote “screw the government” to win.

I’ll give an update on how it all turns out in my next case.

In the mean time - here is some concrete tips that I can give to everyone with traffic infractions and VC40508A charges in santa clara traffic court:

1. Call the court clerk prior to paying and ask if your payment will result in a misdemeanor conviction;

2. Look up your case on-line (courts web site) before paying to see if there is a misdemeanor 40508A charge listed;

3. If you want or need to avoid a misdemeanor conviction for employment purposes, get an attorneys help because it is worth the money;

4. If you want to do the work yourself, schedule an Arraignment, appear in court, and ask the judge to reduce the 40508A to an infraction. If the judge says Yes - Great.  If they say no, then you can decide if you want to have a trial or not.

5. I would Refuse to allow a commissioner to hear your VC40508A misdemeanor case and demand a real judge (you will have to appear in court and make the objection verbally).

And whatever you do, do not assume there is nothing you can do if you have a failure to appear case in Santa Clara County Superior Court.

-Christopher Dort, Esq

More Info: What is  A VC40508A Charge? |

This article was written pro bono as a free self help community service.  It is not advice on your specific case, and should not be your only source of info on the subject.

Questions? Send them to cdort@dortlaw.com or Request a Free Case Review for Santa Clara County.

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How To Get A Conviction Expunged

Need to clear up your criminal record? In California, it is possible to get a conviction removed from a criminal record by getting an “expungement”. Here is how it works.

What is an Expungement?

Expungement is a legal process through which a person may get a conviction removed from the court’s files and off of a criminal record. It is a post conviction dismissal.

Most states have similar processes, but in California expungements and/or “petitions for certificates of rehabilitation” are controlled by the provisions of California Penal Code section 1203.4.  If you have an old misdemeanor conviction, or minor felony conviction, getting the conviction expunged has the same effect as a dismissal.

Recommended Publication: DUI Process: Clear Your Drunk Driving Record.

Generally it starts with the filing of a Petition with the court clerk, and then a court hearing in front of a judge.  A judge reviews the petition and can grant the petition, deny it, or say come back later.

Once an expungement (or petition for certificate of rehabilitation) is approved by the court, a record of conviction is removed form the court’s files, and the defendant can go on with their life as if the conviction never happened.

For people who have lost employment opportunities because of an old conviction, an expungement can be a god send and an economic boost. At the very least, cleaning up a criminal record is a great relief.

The process for getting a conviction expunged is somewhat complicated, but if your conviction qualifies, expungements are routinely granted by the courts, but it requires some work and may require court appearances.

What kind of cases or convictions can be expunged?

Most misdemeanors and minor felonies qualify (see below). But to get an expungement granted, the defendant usually must have completed their sentence without trouble, and have completed any term of probation to its end. New convictions do not qualify, nor do convictions where the defendant is still on probation, or still owes fines or jail time. However, in some cases, probation can be terminated early under authority Penal Code section 1203.3.

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With felony convictions, the matter is more complicated, but can be done. If the conviction could have been charged by the prosecutor as a misdemeanor or a felony originally (known as a “wobbler” offense), the felony conviction can be reduced to a misdemeanor through application to the court under authority of Penal Code section 17(b) (”17b motion”).

Once the conviction is reduced to a misdemeanor, the expungement process is used to expunge it as a misdemeanor, rather than a felony.

Expungement petitions can be filed and completed by everyday people. The best way to start is to go to the local law library and ask for the Practice Guide on criminal expungements to get a sample petition that you can use as a template.

However, getting an Attorney to do the work is usally a more fficient option.  An attorney can often do the work much faster and more accurately because they have specific training on how to get it done right. And usually, it can be done without the client having to attend a court appearance.

If you have an old conviction you want expunged, request a Free Case Review and let us show you why it makes sense to have a professional do the work.

Here is a table to illustrate what can be done in certain situations:

Frequently Asked Questions Re: Expungements and 17(b) Motions:

Can Probation Be Ended Early?

Yes. In California, a defendant may apply for early termination of probation under Penal Code section 1204.3. A motion for early termination of probation is often granted where the defendant have proven substantial compliance with probation terms. The judge has discretion to approve or deny a motion for early termination of probation.

Where Can I Get Expungements Forms?

There is a standardized packet of expungement forms for California created by the Judicial Counsel. They can be found at: http://www.courtinfo.ca.gov/selfhelp/

What If I Had Probation Violations?

Probation violations generally will not prevent an expungement as long as probation was not revoked, and was completed at some point. However, a judge does have the discretion to deny a petition.

How Do I Find Out If My Probation Is Over?

To get information on a criminal conviction and terms of probation, you should contact the criminal division clerk of the court where the conviction occurred. It is usually best to have the case # ready for the clerk.

What Sort of Convictions Qualify For Expungement?

Most misdemeanors and minor felonies qualify. Common convictions that get expunged are Vehicle Code section 14601 (Driving on a suspended license, Vehicle Code section 23152 (DUI), and Penal Code section 242 (assault).

What Is a Penal Code 17(b) Motion?

Penal Code section 17(b) is the law that allows a defendant to ask a judge to reduce a felony to a misdemeanor.  This is important in the expungement process, because it is usually prudent to get a felony reduced to a misdemeanor prior to asking for expungement.

A 17b motion is really a written request from an attorney or defendant to the court asking for the reduction.  A good motion includes the reasons why it is in the “interests of Justice” for the Judge to grant the request.  The need for gainful employement is often a good reason to ask.  The 17b motion can be made at any time, even after the felony case is over.  Normally it is made prior to conviction, and/or after probation is over.

-Attorney Christopher Dort

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Short DUI Trial for Little Driver Leads to Not Guilty Verdict

Jury misconduct helped one of the worlds smallest drivers avoid a DUI conviction last week in Oregon. Star of the Learning Channel program Little People, Big World, Matthew Roloff, was acquitted on January 10th of an alleged DUI charge after the jury was dismissed. I’m glad it’s over, Roloff said afterwards. He was facing a year in jail.

Washington County Circuit Judge Donald R. Letourneau found Matthew Roloff, lead actor on the show, not guilty of driving under the influence charges that were filed by county prosecutors after an arrest on June 19, 2008.

The not guilty ruling came only after the judge was forced to dismiss the 6 person jury, because one or more jurors researched legal terms on the internet during a break in the trial.

Judge Letourneau said the trial’s six-man misdemeanor jury disobeyed his daily orders to not seek out additional information on the case. It was reported that one of the jurors looked up the term “implied consent” and other jurors disclosed it to the judge.

Recommended Publication: DUI Process: Clear Your Drunk Driving Record.

When the disclosure was made, Roloff could have requested a mistrial on the ground of jury misconduct and started over. Instead, his Defense Attorney took a different approach. Attorney Robert Thuemmel asked that the judge dismiss the jury and that Letourneau hand down the verdict himself.

The evidence included police witnesses, and Mr. Roloff’s own testimony.

“Mr. Roloff allegedly failed the field sobriety test and was arrested for DUI,” the police report from Roloff’s arrest states. “Mr. Roloff was transported to the Washington County Jail where he was cited for DUI, refusing the breath test, and failure to drive within his lane.”

According to testimony, Roloff did admit drinking a little alcohol before driving. He testified that he was tired at the time of driving his wifes car and that was the reason for the driving pattern.

At the conclusion of the trial, the judge ruled for the defense and entered a not guilty verdict on the DUI charge.

According to the observations of Attorney Kristin Carter, a Santa Cruz County Public Defender who has won numerous jury trials, it was the right decision.

“Apparently, there was no evidence of a blood alcohol content, and he was driving his wifes’ car. He was not familiar with it.”

Roloff did not get off completely, and was convicted of 2 less serious violations and must pay a fine. The most notable violation was refusal to submit to a chemical breath or blood alcohol test.

It is not known if the news of the verdict will affect the show.

In 2003, Roloff agreed to enter an alcohol treatment program after being charged with driving under the influence of intoxicants. Upon his completion of the program, the charges were dropped.

For an interesting article on Cross Examination Strategies for Law Enforcement on Field Sobriety Tests, Read this Department of Justice Training Manual.

Editor

Email: cdort@dortlaw.com

Special Thanks to:

Central California Criminal Defense Attorney Kristin Carter Contributed to this article.

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