Expungement, Diversion, Dismissal
Poor Choices Young Adults Are Bound To Make
As college is about to begin for the multitude of young people leaving home for the first time, police, prosecutors and courts are gearing up for the usual arrests and prosecutions that take place this time of year. In the old days, the mistakes young people would make would not necessarily tarnish the rest of their lives. Unfortunately, that is no longer the case.
In 25 years of practicing criminal law, I have seen all ranges of crimes involving college students. Young people often make poor choices in friends, conduct, or succumbing to peer pressure. As a result, I frequently need to deal with damage control for their poor decisions.
False Understanding Of Diversion/Dismissal
Many believe that because their matter is a “first offense” that they will get a break in some form. And, in many cases, one may receive diversion. Diversion usually means upon completing counseling, paying some monies, and possibly performing some community service, the case will be dismissed.
But diversion may or may not be an adequate remedy.
By the time diversion is offered, a criminal complaint has been filed. Once filed, it is public record. If dismissed after completing the counseling, then no conviction is formally entered, but the court computers will always show the complaint and dismissal.
So, even if there is no conviction, the arrest and prosecution will appear in a background check. Many licensing agencies will not issue a professional license or a fingerprint card when anything “criminal” appears in a background check.
The prosecutor’s philosophy is that counseling is no good unless one can first admit a problem. So, even though no conviction was ever entered, the fact a plea agreement or contract admitting guilt can be used by many administrative agencies to deny a professional license or fingerprint card. Try obtaining a job or professional license when your drug arrest, shoplift, fake ID, forgery, public urination, public intoxication etc… appear in on a public website.
Arizona Does Not Allow Expungements
If the matter was dismissed as a result of successfully completing diversion, there is no conviction. If there is no conviction, there is nothing to set aside or expunge.
In Arizona, expungement is not available in any circumstance. Arizona permits the filing of a “Motion to Set Aside the Conviction.” Within the discretion of the court, and assuming the motion is permitted for the offense involved, it is normally granted.
However, even if the conviction is set aside, the conviction does not disappear from computer databases. So background checks and court records will still show a complaint, a conviction and a date the conviction was set aside. Once set aside, you may be able to honestly answer the “fact” that you have no conviction. However, since the court action will be discoverable, you will still need to explain the situation to prospective employers.
And, although I am asked many times every week, sealing one’s record is extremely rare. In 25 years, I have never had a request granted.
6 Things To Minimize The Consequences Of Being Stupid:
Stay away from drugs and alcohol. Easier said than done, I know. Any alcohol offense involving a minor can cause problems with MVD. If using a fake ID, prosecutors have an option to prosecute you for forgery related felonies or misdemeanor fake ID charges.
Any drug-related crime in Arizona is a FELONY. Prosecutors have an option in some cases to reduce the offense to a misdemeanor. But understand that it is a felony first….
When involved in anything that results in police contact, identify yourself and provide the information on your driver’s license. For any other questions, request an attorney.
Password protect your phone and do not allow officers to search your phone, car, or residence.
Try and record any law enforcement contact. At worst, it proves their case. But in many cases, it will allow for, or create a defense.
Don’t post anything stupid on social media. Police and prosecutors will always try and find evidence of crimes by using one’s admissions posted on social media.
In many cases, these young adults are too scared to let their parents know they have been charged or under investigation for a criminal offense. That is another mistake. Getting experienced counsel involved in many cases may resolve issues involving the criminal case, but may also promote a defense, mitigate sentencing issues and mitigate collateral consequences with MVD and other entities.