What Happens if You’re Arrested but not Convicted?

Millennial Magazine - not convicted

The last thing you want someone to see about you if they search for your name is that you have a criminal record. Unfortunately, that can be the reality for you.

Sometimes, depending on the situation, it might be shown as part of the public record. In other cases, your criminal history could come up as part of a background check for a job.

Regardless, one of the biggest questions people have is what happens if you’re arrested but not convicted. They often wonder how that scenario shows up on a background check.

There are actually two things that can happen here. The first is that you might be arrested and not charged at all. The second is that you’re arrested and charged but not convicted. We cover what happens with both below.

Arrested But Not Charged

If you were recently arrested but not charged, the record of that arrest does become permanent. Once you’re booked and fingerprinted, there’s an official record of that happening. However, it should be in this case that only law enforcement and the courts can access the record.

If you are applying for a job and the employer asks you if you’ve been arrested for a crime, they don’t have access to your arrest record in many cases. In some fairly limited situations, if you have an arrest record but no charges, it could impact your ability to get a job.

An employer does have the right to set their own policies about hiring people with criminal records, although they have to be in line with local, state, and federal laws. In some states, such as California, Illinois, and Pennsylvania, employers are prevented from asking about any arrests not leading to a conviction as part of the hiring process.

Federally, the Equal Employee Opportunity Commission (EEOC) doesn’t let employers flat-out reject an employment application based exclusively on a record of arrest. Instead, the employer has to investigate what led up to the arrest and, from there, be able to make the case that it indicates a good reason not to hire the applicant.

To provide an example, if someone is applying to work in a nursing home and they were arrested for stealing money from a relative, but the charges were dropped, the nursing home might not immediately end the person’s candidacy because of the arrest. The HR department should instead investigate the situation.

They might find that the only reason the charges were dropped is that the relative decided against pursuing them. That could be a red flag that the job candidate might put residents at risk, so it could be an acceptable reason to deny employment.

To give a short answer to whether or not an arrest without charges shows up on a background check, the answer is yes, it can, but not always. A court case should provide a disposition which is the outcome of the case. If you got arrested, but the case was dropped, for example, then it might show up as dismissed.

If there is a criminal arrest on your background check, it might show a lot of information, including the date of the arrest, the charges, and the date the court decided the case. In a lot of states, a defendant may be able to seal their records whether the prosecution filed charges or not. You may have to file a petition with the court and participate in a hearing for this.

Usually, again depending on the state, if you were arrested, but charges weren’t filed, you have to wait a year before petitioning for expungement of your record. If the arrest did lead to charges but ended in a dismissal or acquittal, you can apply for expungement right away in a lot of states.

What If You’re Charged But Not Convicted?

A lot of the answer to this is covered above. If you are charged with a crime but ultimately not convicted, this can show up on a background check, and again, it will also have the disposition or outcome of the case.

What Can You Do?

If you’re worried about an arrest on your background check and you’re applying for jobs, there are a few things you can do. One thing you can do is be prepared to explain what happened. You shouldn’t go into the details, but provide a brief explanation as to why you have something on your record.

Another option is to try to expunge your criminal record. How you go about this depends on your state, but in some states, when you seal your records, the court removes the case from public record. The case information is still available to some government agencies if requested.

When a state expunges a record, the court denies access to the record unless a government agency has a court order for access.

Employers’ Use of Background Checks

If you’re worried about what might show up about a past arrest and you could be trying to get a new job in the near future, it’s a good idea to do a background check on yourself. This lets you see what employers might see.

There are a number of restrictions on what employers can and can’t access and how they can use information from your background check.

For example, the EEOC does restrict the use of arrests not leading to convictions because there’s a disparate effect on minorities, according to the agency.

Unless the information is directly related to the job, an employer might be pretty limited in how they can use it.

The EEOC requires employers to look at whether the applicant is likely to have committed whatever action is on their record and to consider the nature of the offense. The EEOC also outlines that employers have to weigh the amount of time that’s gone by since the offense or conviction, if there was one, and they have to take into consideration how the offense relates to the particular job someone is applying for.

You can contact an attorney who can help you learn more about your options if you have an arrest on your record that you’re concerned about.

What do you think?

Written by Dallas Dorrall

Dallas Dorrall is passionate about music and is living her dream managing and promoting Nashville/Muscle Shoals based Country Music Artist, Johnny Collier, currently touring the US. While traveling, she enjoys reviewing new artists, restaurants and nightclubs. Dallas is crazy about her family and friends and attributes her enthusiasm for life to a quote by Marianne Williamson (which she still reads every day) entitled “Our Deepest Fear”.

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