I was told that my record was expunged and there was no record to show after completing pc1000 26 years ago. I was being investigated for a "secret" clearance and my arrest and everything showed up when I was interviewed by the investigator. I was told by the court that there would be no record remaining of this event yet I just discovered the court gave me false information. Why? Not only did I not get the clearance, I lost my job for "lying" on the application. The court was adamant about not having to answer that question re being arrested as yes, they were emphatic that one could answer no. Any answers? I am dumbfounded by this double cross.
4 Answers from Attorneys
There is no such thing as a true expungement in California. A record is kept of everything. At the same time the law says that you may answer any question on a job application, other than for a position as a peace officer,by saying that you have not been arrested or convicted. But if an employer tries hard enough they can find the record.
I am a criminal defense attorney and I do not know about any civil remedies against the employer that you might have. You might post on a civil litigation page. If you talk to a civil lawyer and they want information about the law you may have them call me at 415-336-7534,
I will lead this off by saying that something here does not add up and it appears that something maybe missing.You are not clear if you were applying as a contractor or federal civilian employee. will try and make thsi generic enough to apply to both.
To apply for a SECRET clearance you would be required to complete an SF86. Remember that this is a federal clerarance so federal law would apply and federal rules outweigh State statute under the supremacy clause.
The instructions for question 2I :
For this section report information regardless of whether the record in your case has been sealed, expunged, or otherwise stricken from the court record, or the charge was dismissed. You need not report convictions under the Federal Controlled Substances Act for which the court issued an expungement order under the authority of 21 U.S.C. 844 or 18 U.S.C. 3607. Be sure to include all incidents whether occurring in the U.S. or abroad
It is clear you are supposed to report this
The question then goes on to ask
Have you EVER been charged with an offense involving alcohol or drugs? in fact you were charged....
It seems you could explain this in your interview. I have never seen a clearance denied for a single 26 year old charge. (although my experience is with DOD) Even if it were to be denied you would have been provided a statement of reasons and an opportunity to appeal it prior to final denial.
Maybe it could have been construed as a material or willful misrepresentation in the application process but most agencies do offer an ability to file a response based on a proposed action letter if it were a suitability determination...A Contractor will not have as many appeal rights..
unfortunately this was not a double cross as this has to do with federal rules. In fact the SF86 is going through revisions to deal with states that have legalized marijuana while it is still illegal by the Feds.
You should learn from this to educate yourself about what you are doing.
The actual law is that expungement does NOT ‘clear’, 'remove', ‘erase’ or ‘disappear’ the conviction. Nothing will. ‘Records are forever’. Expungement does change the record to show an arrest, charges filed, with 'conviction reversed and charges dismissed by expungement'. The conviction is still a 'prior' or 'strike' for purposes of repeat offenses.
Expungement will help in obtaining employment. When applying for a job in the PRIVATE sector, in response to any question concerning your prior criminal record, you may ‘legally’ deny that you were arrested or convicted of the offense.
However, you must disclose the arrest and conviction in any questionnaire or application for certification or licensing by any GOVERNMENT AGENCY [medical, legal, educational, professional, law enforcement, SECURITY CLEARANCES, BONDING, etc], for public office, for a position as a peace officer, etc. The licensing agency then will decide whether the nature of the past convictions and your record will bar you from licensing and employment in that field.
Expungement turns a conviction into a dismissal. To clear an arrest record, you would have to have had a finding of factual innocence, which is incredibly rare.
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