How Should I Answer Questions on a Job Application if I’ve Been Arrested?

October 14, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It’s heartbreaking for me to hear current clients and folks who’d gone through some rough patches before be extremely excited about a potential job opportunity only to have the opportunity repeatedly crumble at the last minute over and over.

My Approach To Answering “How Should I Answer the Arrest Question”

First – I advise my clients they usually don’t have a duty to answer questions which aren’t asked depending on the job they’re applying for.  Many folks think they get brownie points for disclosing things they might not have to disclose – and in a perfect world this would be true.  My experience is the opposite, though.

It’s really important to read the question being asked, answer that question, and not answer questions which aren’t being asked.  It’s my experience many employers (and their lawyers) sometimes draft imprecise or clunky questions about previous arrests.  These are questions which might allow you to answer the questions honestly yet not require you to disclose your situation.

Remember your potential employer will also probably do a background check on you too.  You don’t want to get ‘too cute’ answering a question about your criminal history only to have the potential employer not hire you anyway.

Expunctions and Non-Disclosures are the best way to solve these problems.  An expunction allows you to deny the entire situation occurred in the vast majority of situations and a non-disclosure hides the affair from the public.

Quick Texas Guide to Background Check Questions

Have I Been Convicted?

Situations where the answer is “No”

  • If you were on deferred adjudication and successfully completed Deferred successfully for a felony or misdemeanor
  • If you are currently on deferred adjudication community supervision for either a felony or a misdemeanor
  • If your case is currently pending and you have yet to enter a plea
  • If you are waiting for your case to go to trial
  • If you went to trial and were found “not guilty”
  • If your case was dismissed for any reason

Situations where the answer is “Yes”

  • If you have ever plead guilty to a Federal offense
  • If you’ve gone to TDC or State Jail
  • If the judge found you guilty even if you were on probation

Have I Been Charged with an Offense?

“Charged” is a tricky word in these contexts.  What concerns me about the wording is I worry some may not agree with my interpretation or might not really understand what this term means.

To me, you are not “charged” with an offense unless or until the prosecuting authority (normally a District Attorney’s Office) files either an information against you in a misdemeanor or an indictment against you in a felony.

But we often hear on television or read in the newspaper someone was “arrested and charged with…..”  That’s usually not an accurate statement because normally the indictment or information follow an arrest weeks or months later.

So I do worry about folks who answer a background check question they have not been “charged” with an offense greater than a traffic ticket but who have been arrested – because the prospective employer might not understand the difference.

Overriding Advice

I always tell my clients – current and former – please call me with any questions about how to answer a specific question.

*Jeremy Rosenthal is board certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.  Nothing in this article should be considered legal advice.

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Police are Getting Theft Warrants for Shoplifting During the COVID Pandemic

October 6, 2020

By Criminal Defense Attorney Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

There are currently a glut of warrants for theft in Collin County from shoplifting cases.

Why?  Because during the beginning of the pandemic, police did not want to take folks to jail for shoplifting.  Police were under marching orders to keep the jail clear and police were like anyone else who didn’t want to ride with a stranger in a car for 20 minutes if they didn’t have to.

You can check Collin County Warrants here.  The warrant page says all warrants may not be visible to the public.  If a warrant is not visible it’s typically because of some organized crime ring where they round up the entire group at once.  Shoplifting theft cases don’t fit this profile.

Why Are They Getting Warrants Months and Months Later?

People are required to go to jail in most criminal cases – even if it’s just to book in then out.  The reason is simple — if criminal court were voluntary, no one would come.  The law doesn’t allow people to be prosecuted in absentia so that means the courts have to have some way to compel you to come.  They make you come to court by holding the threat of jail over your head.

Because they didn’t take someone to jail in the first place in March, April, or May – they now have to do it in September or October.

 

How are They Doing This?

Police are asking judges to sign arrest warrants based on probable cause affidavits.  All a probable cause affidavit lays out is the “probable cause” for the charge.  The judge then signs the warrant which allows police to arrest a person.  Criminal charges come later in this scenario.

Another way arrest warrants are triggered is where the District Attorney’s office files the actual criminal charges.

Are They Going to Come and Get Me if I Have a Shoplifting Warrant?

Legally they can but they might not.  They may not have the resources to resolve this glut of cases and they may just be satisfied for folks to either turn themselves in or for the warrant to sit dormant until someone gets pulled over at some point in the future.

A person with an active arrest warrant should always do their best to promptly resolve the warrant by turning themselves in, however.  Not only is it required by law but as I tell clients by turning yourself in with a plan to bond – you are in control and can minimize how long you’re in jail.  I tell clients an arrest will happen at the worst and most inconvenient time if they don’t resolve it promptly (like when you’re on a big date or on your way to your kids soccer game).

Most warrants like this already have a bond amount set in advance so you might not even have to wait for a judge.  Also, most shoplifting cases don’t particularly carry bond amounts which are extraordinarily high.  There is a good chance you are in and out of jail regardless of your financial condition.

Does This Make My Case Worse?

No.  The prosecutor will ultimately file charges and the vast majority of shoplifting cases are misdemeanors.  They carry a range of options which allow for expunctions or ways to get your record cleared.  I’ve handled so many theft cases I can’t count them all.  I can safely say how the person was apprehended never makes a difference in the case – unless, of course there was a fight or something like that.

There is an excellent chance of getting theft off your record depending on your personal history and the facts of the case through an expunction or non-disclosure.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Super Lawyer by Thomson Reuters.  Jeremy is a senior partner at Rosenthal, Kalabus & Therrian, PLLC.  www.texasdefensefirm.com.

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Posted by niftybrady

Collin County Pre-Trial Diversion Update (June, 2012)

June 22, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

It’s been a while since I’ve written about the Collin County Pre-Trial Diversion program.

As a refresher, the pre-trial diversion program is a less formal probation offered under Tex.Code.Crim.P. 42.12.  In Collin County, a first-time offender may be offered the opportunity to enter the pre-trial diversion program which would result in the underlying charges to be dismissed and eventually expunged.

The Collin County District Attorney’s Office has made this alternative more available in the past few years for certain categories of cases.  Most qualifying cases tend to be misdemeanor theft and drug cases though those charges are not exclusively considered.  While the diversion program is available for felonies, selection of felony cases for diversion has been extremely selective. Diversion is not offered for DWI or DUI charges.

The program has endured some growing pains but remains an excellent avenue towards clearing one’s record.  The current process is that a defendant’s attorney must first apply and be approved by the District Attorney’s Office.  After receiving approval from the DA’s office, a candidate is sent paper-work to be reviewed with their attorney.  The candidate is then required to personally make an appointment with the probation officer who conducts a final interview and decides if the candidate is admitted into the pre-trial diversion program.

Generally speaking a candidate is usually accepted into the program at the interview — but not always (a point they make repeatedly).  The interviewer, however, can reject the application.  The criterion for such rejection can be rather vague but probably hinges on the needs of the person entering the program in relation to the current load of the program.

The program isn’t perfect, but from a practitioner’s standpoint seems to have a high success rate for those who are accepted and remains a useful option.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Petition for Non-Disclosure

March 15, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

A Petition for Non-Disclosure is an intermediate tool used to clean someone’s record.  It essentially hides your record from the public.  It is not as sweeping or as beneficial as an expunction, but it can lessen the blunt force of a conviction.

The Non-Disclosure statute is very complicated and is loaded with qualifications and exceptions.  What it means, in general, is that your criminal record stays intact (unlike an expunction where an arrest record is destroyed), but the state is limited in it’s ability to disseminate the information of your record to the general public.  As you can see by reading the statute, there are numerous agencies which are exempted from honoring the non-disclosure (such as professional licensing bodies), and there are tons of offense which don’t qualify for non-disclosures (such as sexual assault, stalking, and family violence affirmative findings).

Here is how it generally works:  If you plead guilty and are placed on deferred adjudication, you may be eligible to file a petition for non-disclosure two years after the date of your Tex.Code.Crim.P. 42.12(5)(c) dismissal on misdemeanor cases and five years after the dismissal of your felony.  Your petition is discretionary meaning the prosecution can fight it and you must prove to the judge that granting it is in the best interests of justice.

The code was recently amended to allow for immediate non-disclosure of most misdemeanor offenses after successfully being discharged from deferred adjudication.

The benefit of a petition for non-disclosure is that your criminal record shouldn’t be readily available to private companies that do general background searches.  The downfall is that they can be challenging to get and even though the information s difficult to attain, it hasn’t been destroyed as with expunctions.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice you should always consult an attorney.

1 Comment | Collateral Consequences of a Criminal Record, Expunction & Non-Disclosure, Uncategorized | Tagged: , , , , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Deferred Adjudication

March 14, 2010

By Collin County Criminal Attorney Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Deferred adjudication in Texas is where a person charged with an offense pleads guilty or no contest and rather than being found guilty, the judge defers a finding of guilty while the accused is placed on what amounts to probation.

If the person successfully completes deferred, they are never “convicted” of the offense.  Most people are familiar with deferred because of a traffic offense or another class c misdemeanor.  Most class c deferred adjudications do make you eligible for expunction.  You are not eligible for expunction for class b misdemeanors or above in Texas, meaning your criminal record will never be completely erased.  You may be eligible for a petition for non-disclosure which is much different.

It is a dangerous, dangerous, assumption for anyone to make that if they plead guilty and accept deferred that the case merely vanishes or goes away.  Here is an interesting web site about deferred adjudication.  I’m not personally familiar with this group, but they seem to have some interesting information and statistics about deferred.

I’m not always convinced deferred is a terrible thing, but sometimes deferred can even be the devil’s candy… meaning that it sounds very tempting but it only begins your nightmare.

If you violate deferred, then you’re subject to punishment for the entire punishment range.  What this means, is that even though you get deferred on a state jail felony (that has a maximum punishment of 2 years jail — as an example), you may at first just have to report to a probation officer and do probation — but if you violate your probation — you can’t go back and fight the underlying case AND you are still subject to doing up to the entire 2 years in jail.

The federal government may treat a Texas deferred as a conviction.  Also, there are many Texas statutes and laws which simply don’t give you any benefit above and beyond a conviction.  Just as a small example, where a juvenile gets multiple dui deferred adjudications, they can later be enhanced as if they were convictions.  There are plenty of other criminal statutes  in Texas that treat deferred like a conviction.

If you’re about to accept deferred adjudication in a Texas Court, you should make sure to specifically know exactly what it is that you’re getting into by speaking with your

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice, you should always consult an attorney.

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