Expungement: Reality check.

SuzieVN · Apr 4, 2013

Just read- there are over SIX HUNDRED commercial data mining companies, that record your arrest, and etc. Meaning, if you attempt to expunge a conviction, good LUCK getting them to correct your information, after the fact.

SuzieVN · Apr 5, 2013

Lot of people wondering to tell about expunged crimes- will the BON ask? Is it legal to for them to ask? Will they find out? Simple- pull up your BON site and read the application, it'll be clear, right on the application whether you have to report it. Or it 'should' be, some states have a problem using clear English.

db2xs · Apr 6, 2013

I am trying to clarify this. It does say in my state's BON application that one must disclose information even if is expunged or sealed--"by law." But according to a law and policy organization in NYC, it is illegal for state government agencies who give out occupational licenses to ask about sealed information. Contradictory statements. I am currently in the process of getting an attorney to find out whether this is true or not, and whether it's just applicable in NYC or other places as well.

Jory, MSN, APRN, CNM · Apr 6, 2013

Suzie, in all due respect, I know for 100% fact that what you posted varies greatly by state and how long it has been since the incident occurred. I have direct knowledge of how these databases work and I'll be happy to share what I know. This is very important as there is so much misinformation about this subject on Allnurses.com and many attorneys are not fully aware of how the whole system works.

The lawyer is incorrect that an expungement is a waste of money...if it is a case that can be expunged, I believe it is worth seeking.

In general, this is how it works:

When you get arrested for a crime, you go to the police department to get fingerprinted (every time, even if you got arrested twice in the same day, this is an identity measure so they have a fingerprint of who they arrested and who they brought to the jail). You now have an arrest record locally. This also gets reported to your STATE bureau of investigations as well as the FBI database.

This is information is also reported to the local courthouse because an intial court date is always set immediately, even if the case never goes to trial, dismissed or is continued at a later date.

This is why if you EVER get arrested for a crime (Let's say you get arrested in Virginia, the case never went to trial, was completely dropped and then you committed a crime a few years later in California)...if you left fingerprints at a scene and they run them? They can find you. That is because you have an arrest record, even if you have no conviction.

If you are a male and you are registered with selective service, they can find you the SAME WAY.

A LITTLE BACKGROUND ON HOW BACKGROUND INVESTIGATIONS WORK:

#1 thing to know: Background investigations companies are PRIVATE companies. They do not have access to ANY information that the general public doesn't have access too...that is first and foremost. This will become very important as I further explain.

When you fill out a background investigations form, they ask for the last several addresses that you lived at and a social security number, this is what they are looking for:

1. They want to know each county that you have lived in.

2. They will take your social security number and run what is called a social security trace. When you apply for a credit card or use a credit card or have your credit run, the credit repositories (TransUnion, Experian, Equifax) keep a record of these addresses. When a background investigations company runs a social security trace (this is a list of addresses, not credit accounts), they can find out the address and thus the county of any place that you lived that you didn't list. IF YOU NEVER HAD YOUR CREDIT CHECKED OR APPLIED FOR CREDIT AND LIST A PARTICULAR ADDRESS, THE CREDIT REPOSITORIES DO NOT HAVE THAT ADDRESS. "Rogue" addresses can show up on your social security trace because of clerical errors.

Example: I was the victim of identity theft many years ago so I have several addresses in Texas that show up, even though I have never even been to the state.

There are two types of background investigations that these companies do: Original court searches and database searches, these are NOT the same thing.

Original Court Searches: (This is how all background checks were originally done) This is where the background investigations company would send an independent contractor to the COUNTY OR CITY (that was listed in the application or social security trace) and walk into the courthouse and look up information, starting with the name and then using the date of birth and social security numbers as what they call "identifiers". A report of an arrest or conviction, as well as the level (misdemeanor or felony) is obtained and forwarded to the investigations company by the contractor to be reported to the client that ordered the investigation.

Now, this is where things get really screwed up....THIS IS WHERE EVERYONE NEEDS TO PAY ATTENTION closely to what I write, if you have the need, because this is where it gets really, really complicated.

Once upon a time, reputable background investigations companies ONLY did original court searches (and some still do). They were considered the most accurate because they were individually completed and verified by a person, not a computer. As technology moved on and the courts became bogged down with requests from background investigations companies, even charging fees in some cases, someone got smart and started BANKING these results and started their own database companies. COURTS DO NOT sell information to or participate in the creation of these databases!!!!! This started happening in the late 1990's. SO IF YOU HAD A CONVICTION THAT WAS EXPUNGED before that time frame, the chances of it NOT being in a major database, is pretty darn good.

THIS, IS WHERE THE PROBLEM STARTS: Courts have a hard enough time keeping up with who has a court date, what stage of the process everything is in, who is in jail, who needs a trial, etc. Therefore, if you get arrested for a crime, and let's say you get convicted, if you get put on probation and let's say a year or so later the case gets expunged? It's updated with the court system BUT IS NOT updated with the database companies. In short, these databases do not always have updated and accurate information BUT WILL STILL REPORT the information to the ordering client which leaves you explaining the situation.

The Boards of Nursing, do not rely on these database companies for background checks. Your employer does, but the BON, which is a state agency, doesn't have to. They can use state resources, but THEY ARE NOT ABOVE THE LAW...it is important to know that, and this is why:

If the laws in your state allow for an expungement (keyword: ALLOW), that is absolute. It is also important to know that there is no such thing as destroying of records...this means that the record exists but is not reportable. (very often one of the conditions of an expungement or dismissal is that a person keeps their nose clean, this is how they know if you haven't).

WHAT IS CONSIDERED AN EXPUNGEMENT varies by state. For example, in my state, an expungement includes the elimination of any arrest record as well, NOT ALL STATES WILL. I believe California is one of them where the conviction is erased, but the arrest record is not, but I could be wrong.

So, when you complete your application for the BON for a license, depending on which state you live in, they will run a background check with the state and federal agency. For example, I live in state where you have to provide fingerprints for a background check for a nursing license, I border TWO states that DO NOT (they do a background check, but no fingerprints).

SO IT IS POSSIBLE FOR YOUR EMPLOYER (THAT USES PRIVATE BACKGROUND INVESTIGATIONS COMPANIES) TO PICK UP CONVICTIONS OR ARRESTS THAT YOUR BON DOES NOT.

You have to defer to your State Board of Nursing for their INDIVIDUAL requirements on what they want you to disclose. All expungements vary BY STATE. It is up to the future nurse or NP to read the application CAREFULLY.

For example, in my state, if you apply for an LPN or a RN license, it only asks for convictions (this means that if you have been only been arrested or had a record expunged, you mark "NO" in the box...a judge and a court has given you the LEGAL right to do that).

However, in my same state, if you put an application as an NP? Guess what, THE APPLICATION SPECIFICALLY ASKS that you list ALL arrests and expungements if you are applying for prescriptive authority.

This is why it is important that you READ THE APPLICATION!!!!!!!!!!!!!!!!!!!!! It is also important to know how an expungement in YOUR INDIVIDUAL STATE works. This is usually explained when you are in the court and decisions are made regarding your case.

So, to the attorney that gave Suzie the bad advice, the BON doesn't use private databases, they use PUBLIC databases, for background checks. Why don't they use databases? Because they don't have to!!! This is because the state agencies are required to follow the letter of the law so the individual citizen is able to get the due process that the court system and state law allowed them to have.

In short, if you have a conviction, this is what you need to research no matter where you live:

1. Read the application with the Board of Nursing and follow what the BOARD OF NURSING requires you to disclose.

2. If you have an expungement, find out what your INDIVIDUAL STATE considers an expungement...does it include the removal of the conviction and the arrest or only the conviction???

SuzieVN · Apr 6, 2013

This is not legal advice- this is public information found on any consumer affirs website, summed up for easy digestion!: When a conviction is expunged, it is no longer available from the court system (to the general public- like a prospective employer) that had the conviction- except to state and federal government agencies, and most BONs. Your criminal record does not 'ever' clear, not in your lifetime. (In AZ, for a fun example- criminal convictions are not removed from your record until TEN YEARS after your death). But before that happens, that conviction record has been sold and scattered to the winds- there are over 600 companies spreading your information around. In theory, once expunged- those companies would then go back and remove your conviction from their data base. In theory. If you find one (or 500) that still report your conviction, you can then petition them under the Fair Credit Reporting Act, to remove your conviction- same as you would for errors on the big 3 credit reporting agencies. Could take years, to even find how many companies are reporting your ('expunged') conviction, mush less to then attempt to clear their data banks up. As to the note above, right. PIs do not have access to any 'secret' or 'privileged' information- they use the same public data available to anyone. Good luck.

Jory, MSN, APRN, CNM · Apr 7, 2013

....but what I am saying is that it depends on when your conviction took place and no, the state agencies do not sell the information. The people that sell it is the background investigations companies that obtain it. They trade information very similar to how the credit reporting bureaus trade information on accounts.

If you had a conviction before the late 1990's, the chances of you being in any database ARE SLIM.

Most people that are posting in this forum have questions about getting licensure with a conviction. The BON do not use private background investigations companies because of the inaccuracies of their information, plus they can utilize public resources at a far less cost with a higher rate of accuracy (ie. real time).

The other theme on this board is people with convictions not understanding what an expungement involves in their particular state...they need to consult with the attorney on their case for that information.

I haven't seen hardly anyone on this board post that they were clear with the BON and got dinged when they applied for a job...I am sure it has happened, but it is rare.

That is why you need to exercise all legal options if you have the option of an expungement available to you...it's much easier to explain when a judge has forgiven you versus having no such forgiveness.

Never once in my life have I ever heard of someone that received an expungement saying, "Wow, that was a waste of time."

There are certain instances where a judge is very unlikely to grant one, under any circumstances. Crimes involving violence, abuse, drug sales or dealing (versus possession), or any recent crime. They are far more likely to forgive a DUI that you got 10 years ago versus the one you got 10 months ago.

mzaur · Apr 15, 2013

Does anyone know how BONs usually look at criminal history pertaining to drugs? I was arrested for marijuana possession 5 years ago. It will be 8 years when I apply for prescriptive authority. I'm going to apply to MSN programs soon and just want to make sure I won't have any issues because of this. My case was "expunged" since it was my first time, but I think I'll have to mention it since I'm sure the arrest records are out there somewhere, like Suzie said.

Meriwhen, ASN, BSN, MSN, RN · Apr 16, 2013

Does anyone know how BONs usually look at criminal history pertaining to drugs? I was arrested for marijuana possession 5 years ago. It will be 8 years when I apply for prescriptive authority. I'm going to apply to MSN programs soon and just want to make sure I won't have any issues because of this. My case was "expunged" since it was my first time, but I think I'll have to mention it since I'm sure the arrest records are out there somewhere, like Suzie said.

You would have to check with your specific BON for the answer that would apply to you. Usually BONs review applicants on a case-by-case basis.

As far as your expungement goes, if you have any questions about how to answer questions on applications, you should seek the advice of your attorney. I will also engage legal counsel for whenever you have to deal with/appear in front of the BON, as the BON is NOT the nurse's friend.

I will tell you that most, if not all BONs, ask you to disclose even expunged records.

Best of luck.

mzaur · Apr 18, 2013

Thank you for the advice :)

jadelpn, LPN, EMT-B · Apr 18, 2013

I also would ask my specific BON for guidance. In my state, it asks if you were ever CONVICTED of a crime (not arrested for) and if you were, you would have to answer "yes" but in the "expliantion" part write "expunged" or "dismissed". Again, not giving legal advice either. However, I would ask if there's any way that your CORI can reflect "no adult convictions" on it.

Meriwhen, ASN, BSN, MSN, RN · Apr 18, 2013

I also would ask my specific BON for guidance. In my state, it asks if you were ever CONVICTED of a crime (not arrested for) and if you were, you would have to answer "yes" but in the "expliantion" part write "expunged" or "dismissed". Again, not giving legal advice either. However, I would ask if there's any way that your CORI can reflect "no adult convictions" on it.

Another difficulty faced by those with criminal records: when it comes to BONS, the guidelines of the 51 (don't forget D.C. has its own BON) vary. JadeLPN's BON only wants to hear about convictions, but mine wants to hear about arrests even if charges were dismissed. Another state couldn't give a darn about traffic infractions, but mine cares if the ticket was over $300...and to them that covers a large number of traffic violations, many of them innocuous. I always drive with my cruise control on and set for only 5 mph over the limit.

Again, it's always safest to check with YOUR specific BON as well as a lawyer for the most accurate answers.