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  1. #1
    THEWIZ is offline Junior Member THEWIZ is on a distinguished road
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    Can a dismissed and sealed case be held against a police applicant?

    I would greatly appreciate an educated opinion on this matter. About 10 years ago I was arrested by a police officer who was wrong on the law. The arrest stemmed from an allegation that new clothing I was selling to my customers was in violation of copyright laws. These charges were proved to be baseless and the entire case was dismissed and sealed on the merits.

    Then 2 years ago, I was arrested a second time under very similar circumstances. That case was also dismissed and sealed based on the merits.

    My question is, can these two arrest cases that were dismissed and sealed on the merits be held against me when applying for employment in law enforcement?

    Thanking you in advance for your answer.
    Last edited by THEWIZ; 07-21-09 at 08:51 PM. Reason: Correct grammar and spelling

  2. #2
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    Yes. Sealed and dismissed are often times terms used by the court. The arrest report may have not been sealed and you still may have fingerprints on file with a state or federal repository.
    Last edited by Piggy; 07-21-09 at 09:01 PM.
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    Be honest in any and all disclosures about your history. That is what is most important. Any and all explanations for any "history" can be brought up the further you make it through the process.

  4. #4
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    You Will notice that your application will state "have you been arrested or charged with any crime?"
    This is where honesty comes to play. Your answer is yes. Just because you were not convicted doesn't mean you get to answer no. You will get the chance to explain the situation. But by all means, be honest and do not try to hide behind legal jargon.
    Excuse me Officer, I have a stupid Question. "No problem, I've got a stupid answer for you!"

  5. #5
    THEWIZ is offline Junior Member THEWIZ is on a distinguished road
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    All employment applications (LE & civilian) that I have ever seen only ask "Have you ever been CONVICTED of any crime or violation of law?" or "are there CURRENTLY any criminal charges pending against you?". I have never come across a question that asked, "have you ever been arrested or charged with a crime?". Anyone in America can be arrested and charged with a crime. The last time I checked, a person is innocent until proven guilty in a court of law. Criminal cases are dismissed everyday in this country based on the merits (or lack thereof) and defendants can also be acquitted after trial.

    Therefore, my question is amended into two parts.

    A) Can an arrest incident that was dismissed and sealed in favor of the accused be legally considered in a negative manner or used to disqualify a candidate for law enforcement employment (or any employment for that matter)?

    B) Can a complete acquittal after trial be legally considered in a negative manner or used to disqualify a candidate for law enforcement employment (or any employment)?

    Thanks for your time.

  6. #6
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    Just because your case was dismissed in court, it doesn't mean the crime didn't happen. People who sell drugs work their charges off. It doesn't mean they didn't sell drugs to get arrested, it just means they worked their charges off. OJ Simpson was found not guilty, do you think he should be a Police Officer?

    So as posted above, answer the questions truthfully how they appear on the application. Just find a department where they only ask about convictions. It'll rule out any federal job though, as you'll be asked about arrests regardless if the cases were dismissed, expunged or sealed in any form. You are still required to disclose the information.

    You're incorrect about anyone in American being arrested. You have to establish probable cause to be arrested.

    So,

    A: Yes
    B: Yes
    One Big Ass Mistake America

  7. #7
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    I don't know what LE apps you've been looking at then. EVERY one, especially when you fill out the personal history packet, will ask if you've ever been arrested, charged, convicted, etc. It will cover ALL the bases.
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  8. #8
    txinvestigator1's Avatar
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    Quote Originally Posted by THEWIZ View Post
    All employment applications (LE & civilian) that I have ever seen only ask "Have you ever been CONVICTED of any crime or violation of law?" or "are there CURRENTLY any criminal charges pending against you?". I have never come across a question that asked, "have you ever been arrested or charged with a crime?".
    Every LE application I have ever seen DOES ask that. How many LE applications have YOU seen?
    Therefore, my question is amended into two parts.

    A) Can an arrest incident that was dismissed and sealed in favor of the accused be legally considered in a negative manner or used to disqualify a candidate for law enforcement employment (or any employment for that matter)?
    In what state are you? I have never heard of arrest records being "sealed" unless the person received an expunction. Since you must not be in my State, Texas, I would appreciate your pointing to any provision in your laws that cover the sealing of a charge not resulting in a conviction.

    That said, Any information a LE agency obtains can be used for your consideration of employment. ( other than those protected by law such as race, marital status, etc)

    B) Can a complete acquittal after trial be legally considered in a negative manner or used to disqualify a candidate for law enforcement employment (or any employment)?
    Same question, same answer.
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  9. #9
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    Quote Originally Posted by THEWIZ View Post
    All employment applications (LE & civilian) that I have ever seen only ask "Have you ever been CONVICTED of any crime or violation of law?" or "are there CURRENTLY any criminal charges pending against you?". I have never come across a question that asked, "have you ever been arrested or charged with a crime?". Anyone in America can be arrested and charged with a crime. The last time I checked, a person is innocent until proven guilty in a court of law. Criminal cases are dismissed everyday in this country based on the merits (or lack thereof) and defendants can also be acquitted after trial.

    Therefore, my question is amended into two parts.

    A) Can an arrest incident that was dismissed and sealed in favor of the accused be legally considered in a negative manner or used to disqualify a candidate for law enforcement employment (or any employment for that matter)?

    B) Can a complete acquittal after trial be legally considered in a negative manner or used to disqualify a candidate for law enforcement employment (or any employment)?

    Thanks for your time.
    Our app asks if you have ever been arrested or charged with a crime.

    As to your 'amended' question(s):

    A) Yes.

    B) Yes.

    Thank you for your interest in RealPolice.net.
    Click HERE for a common sense tutorial on posting at RealPolice.net.

    DISCLAIMER: The above posting, if in response to a background or hiring question, is not meant to discourage any dreams or ambitions, but instead is a brutally honest opinion based soley on the information provided by the original poster. Please note that your suitability as an applicant is NOT tied in any way with your worth as a person.

  10. #10
    THEWIZ is offline Junior Member THEWIZ is on a distinguished road
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    Quote Originally Posted by Piggy View Post
    Just because your case was dismissed in court, it doesn't mean the crime didn't happen. People who sell drugs work their charges off. It doesn't mean they didn't sell drugs to get arrested, it just means they worked their charges off. OJ Simpson was found not guilty, do you think he should be a Police Officer?

    So as posted above, answer the questions truthfully how they appear on the application. Just find a department where they only ask about convictions. It'll rule out any federal job though, as you'll be asked about arrests regardless if the cases were dismissed, expunged or sealed in any form. You are still required to disclose the information.

    You're incorrect about anyone in American being arrested. You have to establish probable cause to be arrested.

    So,

    A: Yes
    B: Yes
    I've never heard about anyone getting arrested and charged for selling illegal drugs, then "they worked their charges off". Could you explain how this arrangement works and what section of your State law provides for this type of arrangement?

    I'll restate my question and try to be crystal clear.

    A) Can a wrongful and false arrest incident that was totally dismissed, at the request of the District Attorney in favor of the accused, as per section 160.50 of the NYS Criminal Proceedure Law, be used as a disqualifier for law enforcement employment?

    B) If a person is arrested and charged with a crime and is found to be innocent after trial, can that arrest and acquittal be used as a disqualifier for law enforcement employment?
    Last edited by THEWIZ; 07-22-09 at 02:20 PM. Reason: puncuation

  11. #11
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    Quote Originally Posted by THEWIZ View Post
    I'll restate my question and try to be crystal clear.

    A) Can a wrongful and false arrest incident that was totally dismissed, at the request of the District Attorney in favor of the accused, as per section 160.50 of the NYS Criminal Proceedure Law, be used as a disqualifier for law enforcement employment?
    Are you going to continue to ask the SAME questions hoping to eventually get an answer you want?

    The answer is yes, it CAN be.

    B) If a person is arrested and charged with a crime and is found to be innocent after trial, can that arrest and acquittal be used as a disqualifier for law enforcement employment?
    Same question, same answer


    Here are the answers you have already been given;

    Quote Originally Posted by GoDirectly2Jail
    As to your 'amended' question(s):

    A) Yes.

    B) Yes.
    Quote Originally Posted by txinvestigator1
    Any information a LE agency obtains can be used for your consideration of employment. ( other than those protected by law such as race, marital status, etc)


    B) Can a complete acquittal after trial be legally considered in a negative manner or used to disqualify a candidate for law enforcement employment (or any employment)?
    Same question, same answer.
    Quote Originally Posted by Piggy
    So,

    A: Yes
    B: Yes

    Your other question about drug dealers is for another thread. Let's keep this one on topic.
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  12. #12
    THEWIZ is offline Junior Member THEWIZ is on a distinguished road
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    I just consulted with an attorney on this matter. The attorney stated according to New York State law a dismissed and sealed arrest incident CANNOT legally be used as a disqualifier by any employer (public or private). Sealed cases in NY under 160.50 are done to protect an innocent person from further "stigma" arising from an arrest that happened as a result of unsustained false accusations that were never prosecuted. Here is an exact copy of the law...

    § 160.50 Order upon termination of criminal action in favor of the
    accused.


    1. Upon the termination of a criminal action or proceeding against a
    person in favor of such person, as defined in subdivision three of this
    section, unless the district attorney upon motion with not less than
    five days notice to such person or his or her attorney demonstrates to
    the satisfaction of the court that the interests of justice require
    otherwise, or the court on its own motion with not less than five days
    notice to such person or his or her attorney determines that the
    interests of justice require otherwise and states the reasons for such
    determination on the record, the record of such action or proceeding
    shall be sealed and the clerk of the court wherein such criminal action
    or proceeding was terminated shall immediately notify the commissioner
    of the division of criminal justice services and the heads of all
    appropriate police departments and other law enforcement agencies that
    the action has been terminated in favor of the accused, and unless the
    court has directed otherwise, that the record of such action or
    proceeding shall be sealed. Upon receipt of notification of such
    termination and sealing:

    (a) every photograph of such person and photographic plate or proof,
    and all palmprints and fingerprints taken or made of such person
    pursuant to the provisions of this article in regard to the action or
    proceeding terminated, except a dismissal pursuant to section 170.56 or
    210.46 of this chapter, and all duplicates and copies thereof, except a
    digital fingerprint image where authorized pursuant to paragraph (e) of
    this subdivision, shall forthwith be, at the discretion of the recipient
    agency, either destroyed or returned to such person, or to the attorney
    who represented such person at the time of the termination of the action
    or proceeding, at the address given by such person or attorney during
    the action or proceeding, by the division of criminal justice services
    and by any police department or law enforcement agency having any such
    photograph, photographic plate or proof, palmprint or fingerprints in
    its possession or under its control;

    (b) any police department or law enforcement agency, including the
    division of criminal justice services, which transmitted or otherwise
    forwarded to any agency of the United States or of any other state or of
    any other jurisdiction outside the state of New York copies of any such
    photographs, photographic plates or proofs, palmprints and fingerprints,
    including those relating to actions or proceedings which were dismissed
    pursuant to section 170.56 or 210.46 of this chapter, shall forthwith
    formally request in writing that all such copies be destroyed or
    returned to the police department or law enforcement agency which
    transmitted or forwarded them, and, if returned, such department or
    agency shall, at its discretion, either destroy or return them as
    provided herein, except that those relating to dismissals pursuant to
    section 170.56 or 210.46 of this chapter shall not be destroyed or
    returned by such department or agency;

    (c) all official records and papers, including judgments and orders of
    a court but not including published court decisions or opinions or
    records and briefs on appeal, relating to the arrest or prosecution,
    including all duplicates and copies thereof, on file with the division
    of criminal justice services, any court, police agency, or prosecutor's
    office shall be sealed and not made available to any person or public or
    private agency;

    (d) such records shall be made available to the person accused or to
    such person's designated agent, and shall be made available to (i) a
    prosecutor in any proceeding in which the accused has moved for an order
    pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law
    enforcement agency upon ex parte motion in any superior court, if such
    agency demonstrates to the satisfaction of the court that justice
    requires that such records be made available to it, or (iii) any state
    or local officer or agency with responsibility for the issuance of
    licenses to possess guns, when the accused has made application for such
    a license, or (iv) the New York state division of parole when the
    accused is on parole supervision as a result of conditional release or a
    parole release granted by the New York state board of parole, and the
    arrest which is the subject of the inquiry is one which occurred while
    the accused was under such supervision or (v) any prospective employer
    of a police officer or peace officer as those terms are defined in
    subdivisions thirty-three and thirty-four of section 1.20 of this
    chapter, in relation to an application for employment as a police
    officer or peace officer; provided, however, that every person who is an
    applicant for the position of police officer or peace officer shall be
    furnished with a copy of all records obtained under this paragraph and
    afforded an opportunity to make an explanation thereto, or (vi) the
    probation department responsible for supervision of the accused when the
    arrest which is the subject of the inquiry is one which occurred while
    the accused was under such supervision; and

    (e) where fingerprints subject to the provisions of this section have
    been received by the division of criminal justice services and have been
    filed by the division as digital images, such images may be retained,
    provided that a fingerprint card of the individual is on file with the
    division which was not sealed pursuant to this section or section 160.55
    of this article.

    2. A report of the termination of the action or proceeding in favor of
    the accused shall be sufficient notice of sealing to the commissioner of
    the division of criminal justice services unless the report also
    indicates that the court directed that the record not be sealed in the
    interests of justice. Where the court has determined pursuant to
    subdivision one of this section that sealing is not in the interest of
    justice, the clerk of the court shall include notification of that
    determination in any report to such division of the disposition of the
    action or proceeding.

    3. For the purposes of subdivision one of this section, a criminal
    action or proceeding against a person shall be considered terminated in
    favor of such person where:

    (a) an order dismissing the entire accusatory instrument against such
    person pursuant to article four hundred seventy was entered; or

    (b) an order to dismiss the entire accusatory instrument against such
    person pursuant to section 170.30, 170.50, 170.55, 170.56, 180.70,
    210.20, 210.46 or 210.47 of this chapter was entered or deemed entered,
    or an order terminating the prosecution against such person was entered
    pursuant to section 180.85 of this chapter, and the people have not
    appealed from such order or the determination of an appeal or appeals by
    the people from such order has been against the people; or

    (c) a verdict of complete acquittal was made pursuant to section
    330.10 of this chapter; or

    (d) a trial order of dismissal of the entire accusatory instrument
    against such person pursuant to section 290.10 or 360.40 of this chapter
    was entered and the people have not appealed from such order or the
    determination of an appeal or appeals by the people from such order has
    been against the people; or

    (e) an order setting aside a verdict pursuant to section 330.30 or
    370.10 of this chapter was entered and the people have not appealed from
    such order or the determination of an appeal or appeals by the people
    from such order has been against the people and no new trial has been
    ordered; or

    (f) an order vacating a judgment pursuant to section 440.10 of this
    chapter was entered and the people have not appealed from such order or
    the determination of an appeal or appeals by the people from such order
    has been against the people, and no new trial has been ordered; or

    (g) an order of discharge pursuant to article seventy of the civil
    practice law and rules was entered on a ground which invalidates the
    conviction and the people have not appealed from such order or the
    determination of an appeal or appeals by the people from such order has
    been against the people; or

    (h) where all charges against such person are dismissed pursuant to
    section 190.75 of this chapter. In such event, the clerk of the court
    which empaneled the grand jury shall serve a certification of such
    disposition upon the division of criminal justice services and upon the
    appropriate police department or law enforcement agency which upon
    receipt thereof, shall comply with the provisions of paragraphs (a),
    (b), (c) and (d) of subdivision one of this section in the same manner
    as is required thereunder with respect to an order of a court entered
    pursuant to said subdivision one; or

    (i) prior to the filing of an accusatory instrument in a local
    criminal court against such person, the prosecutor elects not to
    prosecute such person. In such event, the prosecutor shall serve a
    certification of such disposition upon the division of criminal justice
    services and upon the appropriate police department or law enforcement
    agency which, upon receipt thereof, shall comply with the provisions of
    paragraphs (a), (b), (c) and (d) of subdivision one of this section in
    the same manner as is required thereunder with respect to an order of a
    court entered pursuant to said subdivision one.

    (j) following the arrest of such person, the arresting police agency,
    prior to the filing of an accusatory instrument in a local criminal
    court but subsequent to the forwarding of a copy of the fingerprints of
    such person to the division of criminal justice services, elects not to
    proceed further. In such event, the head of the arresting police agency
    shall serve a certification of such disposition upon the division of
    criminal justice services which, upon receipt thereof, shall comply with
    the provisions of paragraphs (a), (b), (c) and (d) of subdivision one of
    this section in the same manner as is required thereunder with respect
    to an order of a court entered pursuant to said subdivision one.
    (k) (i) The accusatory instrument alleged a violation of article two
    hundred twenty or section 240.36 of the penal law, prior to the taking
    effect of article two hundred twenty-one of the penal law, or a
    violation of article two hundred twenty-one of the penal law; (ii) the
    sole controlled substance involved is marijuana; (iii) the conviction
    was only for a violation or violations; and (iv) at least three years
    have passed since the offense occurred.
    (l) An order dismissing an action pursuant to section 215.40 of this
    chapter was entered.

    4. A person in whose favor a criminal action or proceeding was
    terminated, as defined in paragraph (a) through (h) of subdivision two
    of this section, prior to the effective date of this section, may upon
    motion apply to the court in which such termination occurred, upon not
    less than twenty days notice to the district attorney, for an order
    granting to such person the relief set forth in subdivision one of this
    section, and such order shall be granted unless the district attorney
    demonstrates to the satisfaction of the court that the interests of
    justice require otherwise. A person in whose favor a criminal action or
    proceeding was terminated, as defined in paragraph (i) or (j) of
    subdivision two of this section, prior to the effective date of this
    section, may apply to the appropriate prosecutor or police agency for a
    certification as described in said paragraph (i) or (j) granting to such
    person the relief set forth therein, and such certification shall be
    granted by such prosecutor or police agency.


    Last modified: July 30, 2006
    Last edited by THEWIZ; 07-22-09 at 06:06 PM. Reason: adjust font

  13. #13
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  14. #14
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    Sir, with all due respect, your attorney can tell you whatever he'd like, he's not the one trying to apply for a LE job. The questions are rather straightforward. No one said it would disqualify you if you answer yes. It CAN, it MIGHT, and yes, they can use it against you. They'll take a look at your application and pass it right on over if they want.

  15. #15
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    (d) such records shall be made available to the person accused or to
    such person's designated agent, and shall be made available to (i) a
    prosecutor in any proceeding in which the accused has moved for an order
    pursuant to section 170.56 or 210.46 of this chapter, or (ii) a law
    enforcement agency upon ex parte motion in any superior court, if such
    agency demonstrates to the satisfaction of the court that justice
    requires that such records be made available to it, or (iii) any state
    or local officer or agency with responsibility for the issuance of
    licenses to possess guns, when the accused has made application for such
    a license, or (iv) the New York state division of parole when the
    accused is on parole supervision as a result of conditional release or a
    parole release granted by the New York state board of parole, and the
    arrest which is the subject of the inquiry is one which occurred while
    the accused was under such supervision or (v) any prospective employer
    of a police officer or peace officer as those terms are defined in
    subdivisions thirty-three and thirty-four of section 1.20 of this
    chapter, in relation to an application for employment as a police
    officer or peace officer; provided, however, that every person who is an
    applicant for the position of police officer or peace officer shall be
    furnished with a copy of all records obtained under this paragraph and
    afforded an opportunity to make an explanation thereto, or (vi) the
    probation department responsible for supervision of the accused when the
    arrest which is the subject of the inquiry is one which occurred while
    the accused was under such supervision; and

    Doesn't this paragraph basically say "yes" to a PD requesting to see and weigh in on it?
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    "The basis of all morality is duty."--Robert Heinlein

    "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." --Thomas Jefferson

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