Follow-Up On Expunged Records On Background Checks

My last post about the problem associated with expunged or sealed criminal records generated quite a few emails from people who have had the unfortunate experience of losing employment or housing opportunities because their expunged or sealed record showed up on a background check.  Some of these stories were horrible to read, I cannot imagine the frustration and pain it caused for those who are trying desperately to find employment.

I checked with my friends at Higbee & Associates and they said they will represent people who believe they were subject to discrimination on the basis of an expunged or sealed criminal record that appeared on a background check.  They will take the case on contingency, meaning the client only pays a portion of what is won in the law suit.  The cases must meet the following criteria:

- The job or the employer must be in California
- The criminal record must have been expunged prior to the background check being conducted
- There must be proof that the expunged record appeared on a background check provided to the employer

Higbee & Associates (HigbeeAssociates.com), which also runs RecordGone.com, can be reached at 714-617-8300.

I also received several emails pointing me to a Florida expungement blog that addressed the issue of sealed and expunged records appearing on background checks.   The article provided an excellent summary of the problem.   While the blog is Florida specific, the problem that it addresses is definitely national.

This problem is something that the background check industry should work to solve before draconian legislation is introduced.  

How To Remove Expunged Or Sealed Criminal Records From Background Checks

When you have your criminal record sealed or expunged by the court, the court will make sure that all the government entities that are in possession of related criminal records also seal and expunge their copies.  However, the courts do not have the resources or any obligation to notify background check companies that your record has been sealed or expunged.[1]  This can present a big problem.

The overwhelming majority of employers and landlords use reports prepared by background check companies.   There are hundreds of background check companies.  Most of these companies purchase a list (usually a giant data file) of all of the court records once or twice a year.  Yes, the courts sell this data.  The background check companies then compile the data from every court into a massive database.   So instead of having to go to each court in the country every time some wants to run a background check on a person, which would be time consuming and incredibly expensive, they simply search the database that they have compiled.   

Why Background Check Companies Report Expunged & Sealed Criminal Records

This approach makes background checks very affordable and fast.  However, it creates a big problem for people who recently had their record expunged or sealed.   Because the courts do not notify the background check company about expunged or sealed records, the records remain in a background check company’s database until the background check company again purchases data from the court. As a result, your expunged or sealed record may still be reported to employers, landlords anyone else who accesses their reports. 

While federal law[2] mandates that the background check company let you know when they have provided adverse information about you to someone so that you can dispute it if it is not accurate, this so called safeguard substantially defeats the purpose of an expungement or record sealing.  It puts you in the awkward position of having to explain that you had a criminal record expunged or sealed.  As attorney Mathew Higbee puts it, “you are left trying to unring the alarm bell, which is impossible to do.”

 

Many states have passed laws that have tried to solve this problem by making the background check companies verify adverse data before they report to an employer or landlord, but the reality is that most background check companies do not follow these state laws.  It is cheaper to violate the state laws, which are rarely enforced, than it is to comply with them.  Furthermore, background check companies have been very successful at challenging the validity of the state laws.

How To Prevent Employers from Seeing Expunged & Sealed Criminal Records

While there is no perfect solution to this problem, there are two very good partial solutions.  The first is offered by the Law Firm of Higbee & Associate (RecordGone.com).  They offer a service called Expedited Record Clearance Update, which will have an expunged or sealed criminal record removed from more than 600 background check providers in less than 14 days. The price for this service is $350 for new clients and $199 for their existing clients.

The other alternative is a free service provided by the Foundation for Continuing Justice (ContinuingJustice.org).  The non-profit law firm will like will have an expunged or sealed criminal record removed from 500 background check providers in less than 90 days.  While this service is slower and affects 100 less background check providers,the service is free.

[1] Some courts, such as Minnesota, do not have authority to instruct all government agencies to seal or expunge their records.

[2] Fair Credit Report Act - 15 USC § 1681 et seq

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Seal a Drug Offense in California

Having a drug offense on your California criminal record can be damaging to your potential career and your reputation. Fortunately, you may be able to seal your drug charge if you successfully completed a drug diversion program pursuant of California Penal Code Section 851.9, and if your drug charge did not result in a conviction, even a dismissed conviction. Once your drug offense is sealed, you will be able to pass most background checks for employment and housing, and more importantly, can legally say that your drug offense did not occur.  

Who Can Get a Drug Diversion Record Sealed?

The Drug diversion sealing is available to offenders in one of two circumstances: 

    1) Successful completion of the court ordered a drug diversion program pursuant to 1000.5 or a     deferred entry of judgment program pursuant of 1000 or 1000.8. 

    2) Successful completion of the drug diversion program.

In either circumstance for drug diversion sealing, the judge ultimately determines if granting your petition for the sealing is in the interest of society. If the judge chooses to grant your drug diversion sealing, the court will send out an order stating that the arresting agency and court records for your drug charge are sealed so that no one can access the records of your sealed drug charge. As per PC 851.90, only the Department of Justice or court can disclose your sealed drug diversion records when determining eligibility for a later drug diversion or deferred entry of judgment program. There are also limited circumstances in which you must disclose your sealed drug offense, such as on an application to be an officer of the peace (PC 851.90(b)). 

Increase the Chances of a Successful Drug Diversion Sealing

In California, the sealing process for a drug charge is complicated and time consuming. A successfully granted petition for a drug record sealing requires a great deal of preparation and multiple court appearances. For this reason, it is highly advisable that you seek the legal representation of an attorney who is licensed by the California State Bar and who is well versed sealing drug offenses in your area. An attorney will be familiar with the sealing process and can make sure that you are prepared for your case by completing all of the necessary court documents properly and promptly, and who can represent you in court. Investing in a record sealing attorney can be the difference between a successful petition and a failed one. If you cannot afford to hire a private attorney, seek the representation of your local public defender who can represent you for a low cost or for free. 

According to Los-Angeles-Expungement.com Courts in Los Angeles do not charge a filing fee for this.

California Felony Reduction Law Change

In my last post I mentioned an exciting news about a potential new bill coming out of the California State Senate that may expand the ability of people to reduce felony offenses.  Well, I have more details and good news.

I spoke with attorney Mathew Higbee and he said the bill has a sponsor and it is being finalized by the State Senate's legislative council.  From there, it will go to committee, most like Public Safety.

The details of the bill include a new chapter to Penal Code section 17.  It would allow straight felonies to be reduced if they are non-violent, so long as a prison sentence was not served.  The petitioner must go five years without a conviction involving moral turpitude, not be facing any new charges and the offense must not be one that requires registration under Penal Code section 290. The petitioner must prove rehabilitation by clear and convincing evidence.

Very exciting news! 

Higbee said that he is working on putting together coalitions to support the bill.  If you are interested in supporting the passage of this bill, please contact Mathew Higbee at his law firm's Orange County office, 714-617-8300.  Or via RecordGone.com 's Twitter or their web site RecordGone.com

New Law To Expand The Ability to Reduce A Felony To Misdemeanor Forthcoming?

Quick Note / Teaser - Spoke with attorney Mathew Higbee of RecordGone.com tonight and he said he is working with California law makers on a bill that will allow people convicted of non-violent felonies to reduce the felony to a misdemeanor if they do not serve a prison sentence.

To be eligible a person must be law abiding for five years after their sentence (DUI's may be excluded as disqualifying offenses) and they must convince a judge they are rehabilitated and deserving of the reduction.

 This would be a very positive thing for tens of thousands of Californians. There are countless people who are practically handicapped by the felony label that was applied to them many years ago. This law would be very welcome news for those looking to have their firearm rights restored.

The bill would would add a new chapter to Penal Code section 17.  It would not affect California expungement law (Penal Code 1203.4). 

Higbee had success in Sacramento with SB 530 last year. Hopefully, this bill, which packs more benefits will be just as successful. He said he will be tweeting about it soon and should have an article written about it in early January. Of course, I will write more if I hear more on this exciting news.

How to Expunge a Felony in Orange County, California

If you have a felony conviction on your criminal record in Orange County, California, you may be eligible to have your felony expunged. Before entering this complicated process, there are a few facts that you need to keep in mind about how to file the petition for the expungement such as where to file the petition, how long the process takes, the cost of filing fees, and what type of representation you will need.
Typically, a felony expungement takes two to four months from the time that the expungement petition is submitted to the court. The length of the expungement process, however, often varies depending on the time of the year and other factors such as the age of your case, the number of counts with which you have been charged, and if the District Attorney objects to your petition for the expungement. In Orange County, the expungement process can be expedited by utilizing different filing procedures.
How to File a Petition for Expungement
When you file the petition for the expungement, you will have to pay a filing fee, which for a felony expungement is usually $120.00; however, cost may vary depending on how many charges are being filed. Generally, you will file the petition for your expungement in the same court that oversaw the criminal case for your felony. You can call the court clerk for information regarding your case, or you can speak to an attorney who can research and access your case information. The information that you will need for your case is the name of your arresting agency, the date that you were arrested, your case number, and the date that the disposition was given.
Call the courthouse that has jurisdiction over your expungement. Here is a list of Superior courts in Orange County that you can call with questions regarding your case:

1. Harbor Justice Center
   4601 Jamboree Rd
   Newport Beach
   (657) 622-5400
2. North Justice Center
   1275 N Berkeley Ave
   Fullerton
   (714) 834-5400
3. Lamoreaux Justice Center
   341 The City Dr. S
   Orange
   (657) 622-6069
4. Central Justice Center
   700 Civic Center Drive West*
   Santa Ana
   (714) 449-8100

*The Superior Court of Santa Ana is the only court that oversees cases with felonies in Orange County.
It is highly advisable that you have an attorney represent you. By hiring an expungement attorney, you are making sure that someone who is knowledgeable in the Orange County expungement process guides you through the complicated felony expungement process from filing court documents accurately and on time, to representing you in court. While you always have the option to represent yourself, in doing so you may run the risk of not filing your documents accurately, which can causes your case to be prolonged or, even worse, result in a failed felony expungement petition.

Interesting Idea On Shutting Down Mugshot Extortion Sites

Websites that publish mugshots in hopes of having people to pay to remove their mugshot have garnered a lot of attention lately— all of it bad, and rightfully so.  The good news is that the operators of these sites are feeling the squeeze.

It started with a New York Times article by on October 5.  The article drew the attention of Google, who responded by taking the extraordinary step of adjusting its search engine algorithm to specifically punish these parasitic sites.   As a result, traffic supplied to these sites by Google dropped an estimated 90%.  Search results that used to produce a mugshot page for a person on page one are now putting mugshot pages in search engine oblivion— page 10 or higher.  If the pages are not seen, well, then why would someone pay to have the page removed.  Good question.  I hope the answer is that they don't.

The next result from the article was a crackdown by the credit card companies.  Mastercard led the charge by revoking the right to accept Mastercard from anyone who they found charging people to remove mugshots.  A representative at Wells Fargo's fraud division said that they were taking swift action to revoke merchant card services agreements with anyone who had a business model centered on mugshot publishing or removal. 

Web sites like Mugshots.com started to squeal.   First, they claimed that they were doing a public service designed to protect society.   A claim that rang totally hollow in light of the fact that mugshots.com still charges a person to remove a mugshot when the case has been dismissed or expunged.   Then Mugshots.com wined about "search neutrality"— a term that implies that search engines like Google should not let their values be reflected in search results.  Well, Google and any other free thinker did not buy the argument— after all, Google is a private company whose business is centered on providing search results that they think are relevant to its user. What Google does with its algorithm is its own business.

Another interesting article that followed was published by the Santa Ana, CA based law firm of Higbee & Associates.  The article labeled these sites as mugshot extortion sites and made a good case for it based on state law in Florida and Arizona.   The article then went on to make a good case as to why the sites are vulnerable to prosecution, both in civil and criminal court, for violations of RICO, the Racketeer Influenced and Corrupt Organizations Act.  Already ongoing legal actions against mugshot sites has been in civil court and centered on privacy and rights of publicity.   However, RICO carries more teeth as a civil case and easily be converted to a criminal case by any enterprising or ambitious attorney general.