In the previous piece about decoding criminal case dispositions, we listed the most common dispositions (e.g., guilty, not guilty, dismissal, not prosecuted). Here is a list of less common criminal case dispositions, some of which may be only found in one jurisdiction:

Suspended Sentence: This means the court has delayed the sentencing for an offense pending the successful completion of a period of probation or successful completion of a treatment program. If the defendant does not break the law during that period and fulfills the conditions of the probation, the judge usually reduces the degree of the offense or may dismiss the case entirely. Until the sentence is reduced or dismissed, the case is considered pending.

Diversion/Deferred Prosecution: The court has delayed prosecution pending the successful completion of probation conditions, at which point the charges will be dismissed. Until charges are dismissed, they remain pending.

Adjudication Withheld: The judge orders probation but does not formally convict the defendant of a criminal offense.

Probation Before Judgment: In Maryland, probation before judgment (PBJ) is one type of disposition in a criminal case. For a defendant to receive a PBJ as a disposition, the defendant must make a plea of guilty; however, the court stays the finding of guilt and places the defendant on probation. If the defendant satisfactorily completes the probation terms, the guilty plea is stricken. PBJ is not a conviction in Maryland.

Stet Docket: The prosecutor may place the case on the stet docket. This is an indefinite postponement of a criminal case for up to three years. It is not a conviction. In Illinois, it is called “stricken off leave.”

ARD Program: Common in Pennsylvania, it stands for “Accelerated Rehabilitative Disposition Program.” This program is given to the defendant in place of adjudication. If the defendant completes the program, the case is closed.

Conditional Discharge: In New York, a conditional discharge is part of a sentence. When the judge sentences the defendant to a conditional discharge, the judge will indicate the conditions that the defendant must meet for the sentence to be successfully completed.

In New Jersey, a conditional discharge is a type of diversionary treatment program offered to individuals charged with a disorderly person’s offense involving controlled dangerous substances (e.g., heroin, Xanax, Oxycontin, or drug paraphernalia). Upon completion of the terms and conditions of the treatment program, the treatment is terminated and the proceedings against the defendant are dismissed.

A dismissal also can take one of two forms:

  • With prejudice – which means the plaintiff is barred from filing a new lawsuit based on the same claim.
  • Without prejudice – which means the plaintiff can still file a new lawsuit based on the same claim, such as when the defendant does not carry through on the terms of the settlement.

A dismissal can be made by the court, the plaintiff, or an agreement between both the plaintiff and defendant.

  • The court can dismiss a plaintiff’s case if the judge concludes the plaintiff’s case is without merit – often referred to as an involuntary dismissal.
  • A plaintiff can also dismiss a case – referred to as a voluntary dismissal.
  • When there is an out-of-court settlement, a dismissal will be filed by one of the parties stating the case is settled – often called a stipulation for dismissal or notice of dismissal. In New York, it is called a notice of discontinuance. (Settlement dismissals usually contain little or no information about the details of the settlement.)

Almost everyone has heard the terms DWI and DUI, and many think that both are interchangeable. New York law uses a third term – DWAI. None of these terms are interchangeable, and New York law does not use the term DUI or driving under the influence.

In New York, there are two main “drunk driving offenses” – DWI and DWAI. DWI stands for “driving while intoxicated,” while DWAI stands for “driving while ability impaired.” A DWI means that the driver is legally intoxicated, with a blood alcohol content of at least 0.08 percent. A DWAI involving alcohol means the driver’s blood alcohol content is between 0.05 and 0.07 percent.

Although the penalties for a New York DWI and DWAI are nearly the same, there is a big difference between them regarding the offense level. A DWI conviction is a criminal offense, while a DWAI conviction is a violation – which in New York is a non-criminal offense.

The practical effect of this distinction is that a DWAI conviction will appear on a New York driving record (usually stated as “driving while impaired”), but the court conviction will not appear on a New York Statewide CHRS report because these reports do not include non-criminal offenses such as violations.

A basic principle of conducting international searches on an individual is that you need a lawful basis for processing personal data. This principle applies to both employment-purpose and commercial background checks.

Although the number and type of lawful bases vary from one country to another (especially with the enactment of new data protection and privacy laws in many countries over the last several years), a lawful basis for processing personal data common to all international searches is the consent of the individual search subject. From a compliance perspective, obtaining an individual’s consent for the searches is the best practice.

Other than the requirements that the subject’s express consent be unambiguous and freely given, there is no universally prescribed format or wording for an international consent form.

If the subject’s consent cannot be obtained, you can look to a country’s data protection and privacy laws to determine if a different legal basis may be applicable for processing personal data that does not require the subject’s consent. It is always up to the controller of the data to determine the appropriate legal basis for processing personal data.

For individuals located in the EU or UK, there are several legal bases that will satisfy the compliance requirements under the EU GDPR, the UK GDPR and the Data Protection Act of 2018 (UK) if consent cannot be obtained. The controller can still request these searches if it has a legitimate interest in obtaining the individual’s personal data or needs the data to perform a contract.

If the request for the searches is based on a legitimate interest or performance of a contract, the individual must receive a notice of the controller’s intention to process the data. Notice can be given in several different ways, including directly to the individual, in an engagement letter or similar document, or by publication on the client’s website. The way the controller gives notice is their decision. 

Some states allow a defendant convicted of a crime to apply for a court order limiting public access to the conviction record or to restore rights and remove disabilities caused by the conviction. This type of order is commonly referred to as an expungement; however, the qualifications for obtaining an expungement and the effect of the expungement vary among the states that allow expungements.

California has an expungement procedure set forth in Penal Code 1203.4. If a defendant meets the qualification of Penal Code 1203.4, the court will allow the defendant to withdraw a plea of guilty or no contest, to reenter a plea of not guilty, and to have the case dismissed. The defendant is also relieved from many of the negative consequences of a criminal conviction.

When reviewing California criminal records showing a conviction, it is important to note if there is also a reference to a Penal Code 1203.4 dismissal because this can impact whether the record is reportable in a background check for a California employer. For example, California law does not allow the reporting of criminal records that result in a non-conviction in employment-purpose reports. Even though the record shows a conviction, the Penal Code 1203.4 dismissal effectively means the conviction never happened.

The reference to the code section will typically be found on the case docket, dated a year or so after the conviction date.

Although several states have laws analogous to the federal Fair Credit Reporting Act (FCRA), the District of Columbia does not. As a rule, the District of Columbia follows the federal FCRA regarding the limitations on reporting negative information in background check reports used for employment purposes. However, there are three notable exceptions where district law differs from the FCRA regarding reporting criminal records:

(1)        Records of arrests or criminal accusations that did not result in a conviction cannot be reported (unless the charges are pending);

(2)        Inquiries about criminal convictions cannot be made unless a conditional offer of employment is made; and

(3)        Convictions with a completed sentence that is more than 10 years old cannot be reported.

The first two exceptions are found in the district’s Fair Criminal Record Screening Amendment Act of 2014 codified at Sections 32-1341 – 32-1346 of the Code of District of Columbia, and the third exception is found in Section 2–1402.66 of the district’s Human Rights Law.

A “disposition” is the final outcome of a case, regardless of what it is called. Here is a list of typical criminal case dispositions.

Guilty or Conviction: This is the worst possible disposition if you are the defendant. It means that the case was heard and decided against you. With a conviction, the court will impose a sentence that may include jail time, probation, and paying a fine and court fees.

Not Guilty: The case actually proceeds to a trial, where a jury (or a judge in certain types of cases) decides that the evidence against the defendant was insufficient for a conviction. It does not mean the defendant was innocent – just that the case was heard and decided in the defendant’s favor.

Dismissal: A dismissal is entered when the court determines that the case should not move forward for some reason. There are many reasons for dismissals. For instance, there can be procedural errors, a lack of proper jurisdiction over the type of case, or the prosecutor decides to dismiss the charges (see below).

Nolle Prosequi or Nolle Prosse: A Latin phrase meaning “no more prosecution.” This is another way of saying that a case is dismissed by the prosecutor. This approach is often used when a defendant may agree to plead guilty to a lesser offense that guarantees the prosecution a conviction for a related offense, in exchange for the prosecutor “dismissing” the more serious charge.

Job applicants often disclose criminal convictions during the application process. It may seem logical that we can include the disclosed record in our background reports. After all, we are simply verifying what the subject already disclosed, right? 

Actually, it’s wrong. The subject’s disclosure of a criminal conviction does not affect our reporting obligations under the federal Fair Credit Reporting Act (FCRA) or similar state laws. Our background reports must always comply with these laws regardless of what is disclosed to us. Under the FCRA, convictions can appear in a report regardless of when they occurred. Most states follow this rule, but several do not. California, Kansas, Maryland, Massachusetts, Montana, New Mexico, New York, New Hampshire, and Washington, all limit the reporting of a criminal conviction to seven years after the conviction occurred. The District of Columbia sets a 10-year reporting limit. 

The NY FCRA sets forth notice and authorization requirements for investigative consumer reports as shown in “https://law.justia.com/codes/new-york/2017/gbs/article-25/380-c/” NY Gen Bus L § 380-C. However, this section is silent on the issue of employee misconduct investigations and we found no  language in NY FCRA law that is analogous to the federal FCRA exemption for employee misconduct investigations as provided in 15 U.S.C.1681a(y)(1).

When analyzing this question, we reviewed a 2006 opinion by the Oklahoma Attorney General that addressed a very similar issue. A state senator wanted to know whether OK employers could rely on the FACTA amendment to the federal FCRA that provides the exemption for employee misconduct investigations and dispense with the OK notice requirements for consumer reports. The OK AG said “no,” the reason being that the OK statute (which specifically references the previously enacted federal FCRA) was enacted before FACTA and the OK legislature did not indicate in the statute that amendments to the original FCRA would also be adopted.

Of course, the AG opinion is not a binding law anywhere, including in OK. But it does show how the issue may be analyzed to the detriment of the employer if it arose in litigation. Like the OK statute, the NY FCRA was enacted well before the FACTA amendment in 2003 (NY FCRA was enacted in 1977). However, unlike the OK statute, the NY FCRA does not include any references to the federal FCRA and, therefore, does not rely on any of its language as originally enacted. That is a distinction that can undermine an OK AG-type analysis to the NY FCRA.

The most we can say is that the NY FCRA does not address employee misconduct investigations and that the federal FCRA does set forth an express exemption from its notice requirements for such investigations. Whether there is a conflict between the NY notice requirements (or any other state’s notice requirements) and the federal exemption for employee misconduct investigations remains to be seen and there are no court opinions addressing the issue.

In the absence of guidance from NY FCRA regarding employee misconduct investigations, the employer can follow the federal FCRA exemption for these investigations. It would be prudent for the employer to document the need for confidentiality of the investigation, specifying the reasons why alerting the employee would undermine the investigation.

Typically, an arrest record will show the date, arresting agency, and the subject’s name (and other identifiers such as DOB and address), without specifying the charge or charges. The reason for this is twofold: (1) until the district attorney (“DA”) files a criminal case, there are no charges; and (2) the charges filed by the DA may be different than the charges on which the arresting officer based the arrest. An “arrest” and “being charged with a crime” are different things (although obviously related).  An “arrest” means that a person is taken into custody because they have been accused either by a warrant or by probable cause of committing a crime. Once in custody, the prosecutor’s office will decide whether the person will be charged with a crime. The person will then be given a charging document (complaint or information) that will state what charges they are facing.

A record will never show that an arrest was “dropped.” At best, you can infer that no charges were filed after an arrest if there is no corresponding court case.