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.

Visit Traffic Court Pros.com. Free Self Help. Free Attorney Case Reviews.

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

Follow Us on Twitter:  http://www.twitter.com/tcpattorney

Free Court Tips on Twitter:  http://www.twitter.com/court_tips

Need help with a traffic court problem, Suspended License, Failure to Appear or Warrant?

Traffic Court Pros.com can help! Get a Free Case Review (Click here)

Question about this article? Post a comment and we will try to respond with useful info.

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.

Visit Traffic Court Pros.com.  Free Self Help, Free Attorney Case Reviews.

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.

Follow Us on Twitter:

http://www.twitter.com/tcpattorney (Attorney Feed)

http://www.twitter.com/court_tips (Free Court Tips)

http://www.twellow.com/users.tcpattorney (Profile)

There Are Defenses to Driving on a Suspended License (VC 14601.1)

If you were recently arrested for Driving on a Suspended Drivers License, it may seem like a hopeless case if your license actually was suspended.  But you may not be completely screwed, because there are defenses to driving on a suspended license.

Background.

California Vehicle Code section 14601.1 is the law that makes driving with a suspended drivers license a misdemeanor crime. Yes, its a real misdemeanor, which means it can lead to a criminal record, and jail time.  (Not to mention 2 points on your DMV Record).

Because it is a misdemeanor, people charged with driving on a suspended license violations, such as Vehicle Code section 14601.1 and 14601.2)  are entitled to a jury trial if they wish to fight against a conviction.

Defenses to the charge of VC 14601 can produce a dismissal or a not guilty verdict at trial, or provide leverage for plea negotiations.  A good defense Attorney will review and consider at least the following defenses, which may lead to a not guilty verdict or extra leverage for plea negotiations:

Visit Traffic Court Pros.com.  Free Self Help, Free Attorney Case Reviews.

Defense # 1. The stop of the vehicle was an illegal detention (4th Amendment; Penal Code section 1538.5).

Peace officers, such as the California Highway Patrol and City police officers, must have a valid legal reason to stop a vehicle. The 4th amendment to the US Constitution requires that an officer have specific facts that would lead a reasonable officer in the same circumstances to believe that:

1) a crime occurred, and

2) that the vehicle or occupants were involved in the crime.

In practice, this generally means that the officer must have reason to believe a driver has violated a traffic law.

An officer is generally not allowed to stop a vehicle only because they suspect the person may have a suspended drivers license. This is because there is no way for an officer to know who is actually driving a car, or what the status of the drivers license is until after the car is stopped (or detained). The justification for the stop must be present before the officer turns on his flashing blue lights. If not, it is an illegal detention.

If there are grounds for challenging an illegal stop, an Attorney would write and file a Motion under Penal Code section 1538.5 for an order to exclude all evidence flowing from the illegal detention, including discovery of the status of the drivers license.

Usually, the court will have a separate hearing prior to jury trial to determine if the Motion should be granted. In ruling on the motion, the judge will take live testimony from witnesses and the police officer(s).

If the judge agrees that the stop was illegal, the Motion is granted, and the court will not allow evidence collected after the stop in the trial. That means they cannot use the status of the drivers license as evidence.  When this happens, the prosecutions case is usually crippled and usually dismissed on the spot.

Defense #2. A driver charged with VC 14601 starts out innocent, and there may not be sufficient evidence to convict.

A defendant charged with a misdemeanor violation starts out presumed innocent by the court.

To get a conviction, the government must prove the violation up “beyond a reasonable doubt” to overcome the presumption of innocence. If they can’t do it, the defendant remains innocent.

Many not guilty verdicts have been won on the simple argument to a receptive jury that there was not enough evidence shown in trial to prove the charge beyond a reasonable doubt, and therefore, not enough to convict.

Consequently, it is always important to review all of the evidence the government intends to use in a prosecution. A careful study of the evidence may reveal that critical evidence is missing or not admissible because of a rule of evidence.

Such may be the case if a prosecutor does not have admissible documents to prove the DMV suspended the drivers license during the day of the violation.

3. The driver did not have actual knowledge of the suspended license.

They have to prove you knew your license was suspended.  It is a required element of the charge.

If a driver does not have real, actual knowledge of a suspended license, and is arrested and charged with a violation of Vehicle Code section 14601, it may be possible to convince a jury to vote not guilty on the charge.

There are many hurdles to this defense, but it does work with the right facts. One of the hurdles is that a driver is required by law to keep their address current with the Department of Motor Vehicles, and DMV does send out notices of suspension to the last known address. And yes, they send it certified and probably have proof they sent it to your address on file.

However, there are occasions where DMV fails to give proper notice or warning to a driver of a suspended license. When that happens, there may be grounds for a motion to dismiss the case prior to trial, or a solid basis for a jury to vote not guilty.

There are other defenses to driving on a suspended license, and a defendant wishing to fight a VC 14601 can read up on others with a little research.

Plea Agreement Negotiations.

If there is an applicable defense to a case, or evidence that may lead a jury to vote against a conviction, it can be used to negotiate a plea agreement with the prosecution to end the case without a trial. After all, no prosecutor wants to lose a trial, and when presented with weaknesses in their case, they may become flexible and willing to reduce a misdemeanor to an infraction, for example.

But if not, with the right facts and presentation, a not guilty verdict can be won in some driving on a suspended license cases, even if the license was suspended.

Ironically, getting a valid drivers license (or the license reinstated) is not a defense to the charge of violating Vehicle code section 14601. This is because getting a new license does not suddenly erase history, and it is not a correctable violation.

But there is good news.  When a VC 14601 defendant gets a valid drivers license, it is often very helpful in getting a good result on the case. The courts and prosecuting agencies are always motivated to get rid of suspended license cases efficiently, and most judges believe society’s interests are best served by getting a suspended driver back on track, rather than giving them a jail sentence.

Specifically, a valid drivers license can be used by an attorney to negotiate a reduction in the charge to a substituted charge of Vehicle Code section 12500(a) - (Driving without a valid drivers license) - which is much better for a lot of reasons.  The most important reason is that it can be an infraction.

Updated May 2009.

(info and links are not meant to be advice on any specific case, and citations to statutes are paraphrased. For advice on your case, consult with a license attorney and/or check official publications for current statute language)

For more info:

By Attorney Christopher Dort  - Email cdort@dortlaw.com

Follow Us on Twitter:

http://www.twitter.com/tcpattorney

Traffic Court Pros.com

Was Your Failure to Appear a Misdemeanor or an Infraction? Make Sure Your Get a Clear Record.

Some traffic court violations always start out in court as a Misdemeanor charge, but can be reduced to infractions by the court. In many failure to appear cases, it is not clear to traffic court defendants whether they were convicted of a misdemeanor, or the less serious Infraction version of a violation.

Sometimes, after the case is over, the Department of Motor Vehicles will get it wrong, and list the case as a misdemeanor conviction on a driver’s history report, when in fact it was not a misdemeanor. Getting a clear record of a case from the court when it ends can protect a driver from this messy problem.

Visit TrafficCourtPros.com
Free Attorney Case Reviews; Free Traffic Court Self Help Info

The details of the problem are these:

There is a big difference between a Misdemeanor Conviction and Infraction Violation. Misdemeanors are real crimes that have a maximum penalty of up to one year in the county jail. Misdemeanors show up on background and criminal records checks as criminal convictions.

Infractions are much less serious. They are not considered crimes, and carry only a fine as the maximum sentence. They do not appear on criminal records / pre employment screenings.

Some Vehicle Code violations, such as a failure to appear in court (Vehicle Code section 40508a), and driving without a valid license (Vehicle Code section 12500a) always start out as a misdemeanor charge, but can be reduced to an infraction by the court when a defendant pleads guilty or no contest.

Many traffic court commissioners and judges will routinely reduce a failure to appear charge under 40508a from a misdemeanor to an infraction if a defendant shows up in court voluntarily and resolves their case efficiently but pleading guilty or no contest.

When a misdemeanor failure to appear charge is reduced to an infraction by a traffic court, the penalty is generally a simple fine. The court’s record of the case is changed from a pending case with a Vehicle Code section 40508a Misdemeanor charge, to list a conviction of a Vehicle Code section 40508a “Infraction”. The case number and the vehicle code violation number (the statute) are the same, but the classification is very different than when the case started.

The court then notifies the DMV that the case is no longer pending, and ended as a conviction.

Somewhere along the line things can get mixed up. The California Department of Motor Vehicles does not always correctly document what happens in court. At TrafficCourtPros.com, we have noticed the DMV at times mislabels failure to appear convictions as misdemeanors, when they were reduced to infractions by the court.

Our theory (based on opinion) as to why it happens it that the court employees and DMV employees responsible for the communications do not understand the difference between a misdemeanor and infraction.

Because a failure to appear charge under Vehicle Code section 40508a always starts out as a misdemeanor, DMV gets notice of a misdemeanor failure to appear form the court and notes it on the drivers history record for the driver as misdemeanor.

If the driver is later convicted in court of a 40508a violation reduced to an infraction, the DMV gets notice of the conviction from the court, and changes the driver’s history record to reflect a 40508a conviction. But the bad news is they often fail to correct the listing from a “misdemeanor” to an “infraction” on the DMV record.

The result is that although there really was not a misdemeanor conviction in court, the DMV incorrectly lists the driver of having a misdemeanor 40508a conviction.

If the driver does not have proof that the court reduced the misdemeanor to an infraction, getting a misdemeanor conviction removed from DMV records can be a nightmare.

But if the driver gets a clear record of the conviction on a court abstract at the time the case ends, the problem can be cleared quickly. All the driver has to do is take the court abstract to a DMV office.

Unfortunately, a common and serious mistake made by people in traffic court is that they fail to clarify whether or not they are being convicted of an infraction or a misdemeanor while in court.

So her is our Newest Traffic Court Self Help Tip: If you are going to court on a failure to appear charge (40508a), get a clear record of the violations you are convicted of when the case is over. Keep copies of the paperwork in a safe place.

If you are not sure if you are being convicted of an infraction or a misdemeanor, ask the judge to clarify it. It’s your right to know for certain. Get proof and check to make sure DMV has it right. Contact the DMV Driver Safety Office near you for details on what they have listed on your record.
Blog Article Code

-Christopher Dort, Esq.

Editor

Email: cdort@dortlaw.com

Need help with a traffic court problem, Suspended License, Failure to Appear or Warrant?

Traffic Court Pros.com can help! Get a Free Case Review (Click here)

Or research your issue with our Traffic Court Pros.com Custom Search:

Credit Repair
Improve Your Credit in 24 Hours