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  • Writer's pictureMike Macht

But my case is done, why is this happening?

I think we all can look back on a time in our lives when we've made some mistakes. Unfortunately, sometimes those mistakes follow you and sometimes those mistakes land you in trouble with the law. But what about when you learn from those mistakes? Let's take one of the common scenarios my office deals with - larceny.

Here are the facts: Sally is a single parent and she's working full time at Ingles to support herself and her child. On the side, she's going to school to be a bookkeeper. Unfortunately, Sally fell ill and as a result, she was unable to work for a short period of time. She began to fall behind on her finances and in an effort to feed her and her child, she stole some groceries from work. Normally, Sally would be charged with larceny, but in this situation, she was charged with a felony for committing the offense of Larceny by an Employee. Sally retained my services and after having to do some work and make some restitution, we were able to obtain a dismissal of Sally's criminal charge. Sally is obviously ecstatic. After Sally gives me a hug she begins heading off despite me telling her I want to talk to her further. Twelve months go by and my phone rings - it's Sally. "I applied for a job doing bookkeeping work, but they won't hire me because of my background check. I thought you said my case was dismissed?" she fumes. "That's what I wanted to talk to you about" I say....

When you're charged with a criminal offense and we're able to work out a dismissal the case isn't removed from your record. When your employer or your new landlord runs your name through a background check they'll see that you were charged with a criminal offense. When you fill out your job application or your lease application if your asked if you were ever charged with a criminal offense you'll have to say yes and then explain it was dismissed. But even if it was dismissed, people don't have to hire you despite your qualifications. In order to have a matter that is dismissed removed from your record, you need to obtain an expunction. The expunction will actually destroy the court file and any law enforcement agency involved in your matter will be directed to destroy their investigative file. At that point in time, when a background check is run your offense should not appear (some private services may take additional time to remove this information from their databases). When asked if you have ever been accused of committing an offense, you will be permitted to say no in your applications.

Let's change the scenario a bit. Let's say that Sally was accused of stealing from her employer, but once she hired me we were able to determine that Sally wasn't the thief, it was her boss, Paul. WLOS posts news stories talking about Sally's alleged acts. We try Sally's case and a jury comes back and finds Sally Not Guilty! But again, after some time, she calls and we end up with the same conversation. "The jury found my not guilty! I don't understand?" Sally is in the same position. Sally and I need to fill out an application for an expunction. Once a judge grants that petition, she will then be able to state that she was never charged with an offense. She'll have to deal with anyone who may remember those WLOS stories, but those don't generally make a background check.

When Sally was charged, she was also found to have a little bit of weed on her. Sally completes a diversion program through the court. Her case is dismissed pursuant to that program. Yep, she's in the same boat. She needs to get an expunction.

The moral of our story is that when your case is dismissed, it isn't off your record. To get the offense removed from your record you need to obtain an expunction. But there are some other lessons here:

1. Pay attention to the application. Don't volunteer more information then is being asked.

2. Pay attention to your social media presence. I don't necessarily mean your facebook, instagram, or whatever else profile you may have, I mean your online presence. Search for yourself. If you find information out there that isn't true, take steps to clear it up. If someone is trying to extort money from you, contact a lawyer or law enforcement and we may be able to assist. If your history is too pervasive online where we can't help, we can put you in touch with someone that can help clear your online reputation.

3. Read carefully: If your application asks "have you ever plead guilty to a felony", don't volunteer information about your misdemeanor shoplifting offense. If the question asks have you ever been accused of a crime, you may have to discuss more than you want.

4. Know your reality. Were you adjudicated delinquent when you were a juvenile? That isn't a criminal offense, and thus, may not have to be reported since it isn't a criminal conviction. On the flip side, were you found guilty of something when you were 16 years old? Under current N.C. law, that isn't a juvenile adjudication so you may have to disclose it on your applications. Many people think that because they were convicted when they were 17 they're record is sealed. It isn't, in North Carolina. Although you weren't old enough to rent a car, current law deems that you were old enough to understand the consequences of your actions.

5. Speak with an attorney. If you have some things on your background that you aren't thrilled about come and speak to me. I may be able to assist you with an expunction.

6. Know there is a lead time. Expunctions take time. After a judge signs the request for an investigation to be performed to see if you qualify for an expunction, your petition is sent to Raleigh where a state-wide database is searched to determine if you qualify. Following that, a national database is searched to determine if you qualify. After that, we may need to do a hearing with the prosecutor on the other side to argue whether the judge should grant you an expunction despite the fact that you qualify.

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