Expunged Criminal Records

[cale42]

I searched on the board, and there has been some talk of what to report where regarding expunged records both driving and FAA.

However there has been little mention of expunged criminal convictions, which is what I have a question about. Back when I was 18 I got busted for being in the wrong place at the wrong time and lying to the cops. Plead guilty to misdemeanor attempted obstruction of justice. 12 months probation, some community service and an order of court supervision and the record was expunged. The way this was explained to me over and over by lawyers and clerks was that it was as good as if it never happened... there is no conviction.

This information in hand i applied for and received several medicals over the years with no problem.. I always checked no when asked about prior convictions for misdemeanors or felonies, as far as I was concerned I had none

Fast forward to today... 6 years later I have come full circle and am pursuing a career in aviation. Did I screw up here.. should I have checked yes on the 8500 form all along and I just didn't know it? If so how do I fix this. Or was I right all along, an expunged conviction is the same as no conviction and I should go on my merry way.

I know the first answer will be to get a lawyer.. I plan to contact AOPA legal services in the morning and get their take.. but if anyone here has experience with such a thing, I would appreciate it.

Thanks,
cale

 

[Snakum]

For the love of God, man ... READ the posts on this. One last time ...

For the purposes of aviation back-ground checks by both the FAA and Part 121 airlines for unescorted access, both of which utilize the Federal Criminal History report ... there is no such thing as an expungement. If you have ever been arrested for a felony offense, whether you were 8, 18, or 50 years old, and regardless of the eventual conviction ... it's in your Federal file. If you were ever arrested for a class 2 or higher misdemeanor, the chances are good that they're gonna have that, too, regardless of the conviction/non-conviction.

When the airlines or the FAA ask you if you have ever been arrested for a non-traffic offense ... TELL THEM THE G@DD@MN TRUTH! They will find out, and you will join at least two other people I know who were pulled out of ground school and sent packing. I am currently under investigation by a Federal Agent for the FAA and I have always listed my two convictions, and one other which was expunged after a PJC. It's a good thing I did too, because it's IN MY FEDERAL HISTORY ... and so is yours! If I did not have proof that I had listed these offenses on my medical apps from day one I would have had my medical pulled immediately and would be looking at a hefty fine. The FAA is cracking down on this stuff.

Jesus ... why are you guys always trying to skirt the rules?

Minh

 

[weekendwarrior]

Dude, hire an aviation lawyer now....you're screwed!

 

[cale42]

Snakum.. it was actually your other thread that got me thinking about this so I appreciate that.


However I don't feel I have ever tried to skirt the rules. The FAA medical form clearly asks if you have ever been convicted of a felony or misdemeanor... not arrested. I have always understood that point, and when it asks about arrested I always report it. However being found innocent.. OR receiving court supervision results in no conviction, just an arrest. It is fairly black and white that when applying for a medical it says a conviction.

I do feel though that the FAA changes it stance on these things all the time.. thats why I'm trying to do the right thing now... rather than wait until someone comes after me for this and then try and explain the situation.

I want to re-iterate though, that I feel if the question on a form says convicted and you were not, you say no. If it asks about arrested clearly the answer is yes.. fairly plain and simple

 

[Snakum]

Apologies ... I guess I got a little emotional, because I've followed the rules to the letter (and the spirit) and I'm still getting grilled by the FAA. It wasn't specifically directed at you, either, as much as other folks who post periodically over the years that they've neglected to report things, or to ask about whether or not an expungement will come back to haunt them. Sorry bout yelling, I'm on my period today because I turned 41 years old at midnight.

About the records v.s. airlines/FAA thing ... it's my understanding that the 8500 form (and I don't have one with me right now) asks in section 18 block W if you've ever been convicted of a non-traffic felony or misdemeanor. Since you answered no to that one, technically you are in violation of the FAA rules, and more than likely, your arrest will show up on the Federal history and the airlines and the FAA (when they find out) will want a certified copy of the disposition from the county in which the offense occurred. Even though you receive a PJC or community service or whatever, it is still techincally classified as a conviction on your record. More than likely, the FAA will see that you were indeed convicted of a misdemeanor and will initiate an investigation thru your local regional office to determine what's going on. Only an aviation attorney can tell you whether or not your expungement will carry weight with the feds. None of us could speak knowledgably about that part.

The same most likely would apply if an airline saw that you checked NO to non-traffic arrests on your application (I've been told that airlines ask about arrests, not convictions), yet they see the arrest on your federal report (and it will be there ... you can count on it). They'd want a certified copy of the disposition and you'd be in for a fight to keep your job. I know this from two other professional pilots who were canned in ground school for the same/similar thing. One had been told his record was expunged when he turned 18, the other just didn't mention his misdemeanor conviction because he received a PJC. Both were terminated.

So please, please be careful what you put down on the 8500 and on the airline apps, because the FAA (and most likely the airlines, too) are being much more thorough on applications post 9/11.

Best of luck to you, and let us know here how it all turns out. Knowledge is power for these young guys who want to fly professionally, and I want to help out any way I can by relating my own experience.

Minh

 

[cale42]

Snakum, I feel for your frustrating situation and hope it all works out for you.

I guess for me the ultimate confusion lies in this. The way court supervision works as it was explained to me and as is cross-referenced by several websites is that if you receive it your conviction is suspended and never entered into the system... if you complete your court supervision the conviction never is entered it just goes away. The record shows that there was a case brought against me, that it was resolved, I received court supervision and there is no conviction. That is how it was explained to me by several people, even explicitly saying the point of court supervision is to prevent the person from having any criminal record if they meet the terms of the supervision.

What sucks is that I have no feel for how the FAA views this. I understand the law and how it is meant to be applied but how the FAA interprets this is a whole other story.

So again, from a legal standpoint I DO NOT have a conviction. Thus my checking no on the medical app. I was arrested and when asked I will ALWAYS report that. It was a stupid thing... lying to a cop anyway.. not something I'm trying to cover up. However if I had known when I first applied for a medical all the stuff I know now I would have reported it anyway. But I was just a naive student pilot at the time, now I'm trying to figure out if I should do something to set the record right. But as mentioned I'm concerned the FAA will feel I was lying all the time when I wasn't.

Who knows... I'll keep you posted. I am going to try and use AOPA's legal service to get an aviation attorney to advise me on the matter, as I can't afford one on my own.

cale

 

[flx757]

What you (or anyone else for that matter) CAN afford is to do is your own backgrouond check. Have your fingerprints done. This can be done by your local police for a very nominal fee. Submit these to the FBI along with the proper fee (the address and fee can be found by searching my earlier posts on this board...or you can get it from ALPA or AOPA), and request your criminal history.

Then request your driving records from your state as well as do your own search of the National Driving Register. Then you will know what is in your records, the same as anyone else....airline or whoever....runs a background check on you will know.

It's easy to obtain this information, and then there is no "guessing" on your part. Everyone who has even the slightest doubt what is on their record should request these files and do your OWN background check....using the same resouorces as those who will run their checks do.

 

[Snakum]

What sucks is that I have no feel for how the FAA views this

Aye ... there's the rub.

I can only tell you what the Federal Agent doing my report said, which is probably indicative of the thinking of the FAA in general. He said that when an arrest shows up on the federal criminal history (FCHR) they require that the airman provide the county documents to prove exactly what happened, and if nothing is found within the county record, then we have a problem. He says that an arrest with no disposition is a very red flag, because they are tasked with ensuring the airman's declarations are 100% truthful.

Here's an example: I have always listed a summons (not an arrest) in 1993 on my 8500 in which I was charged in civil court with communicating threats and damage to property. It was my understanding from the judge that I receieved a PJC on the threats charge (meaning if you stay out of trouble it will go away) and the other was dismissed. When I pulled my county records Monday the one dismissed charge was listed but not the PJC'd charge. It's as if it never happened as far as the county is concerned. However, because there is a record of the summons in my FCHR, he has to reconcile the two reports. What saved my behind is that I have always reported it, and I have provided copies of my old 8500s as proof. He has actually had to get a copy of the North Carolina criminal statutes to learn how a 'PJC' works, to ensure I wasn't BS'ing him. That's how thorough they have to be.

So I imagine your case might be similar, in that technically there is no conviction on record, yet there will be an arrest record on the FCHR. The best bet is, indeed, a lawyer. They'll get you straightened out, I'm sure of it. It'll just be a pain in the @ss to jump thru all the hoops, but you'll probably be fine.

If there is anything you'd like me to ask the FAA Agent, just PM me. He's been pretty cool thru this whole thing and seems to like fielding questions about his work. I've found out a lot of interesting (and scarey) things from him about the system. I'd be glad to help however I can.

Best of luck!

Minh

 

[Gulfstream 200]

regardless of conviction, arrests can be found forever, dont doubt it.

I also agree, there is no such thing as "expunged".

chances are it may never be found, but thats your roll of the dice.

As mentioned, the only 'safest" bet is to do the same background check your potential employer may do - but this is not always known

good luck...

All I can say is that simply honesty and being humble goes far, and does not axe you from most jobs, but being caught in a lie -- DONE.

 

[cale42]

I completely agree Gulfstream.. the arrest record will be there forever.. I never have or will try to avoid that.


I guess what rubs me wrong is the FAA medical application says convictions. In black and white. But from listening to some of the things Snakum has had to say it seems quite clear that they want to know about all arrests. Well thats fine if thats the case.. but then the question on the form should say that.

 

[SheGaveMeClap]

What if there is no arrest, you were ROR, and your misdemeanor charge was dismissed on a continuance? Would that show up on your background check? I was charged, but not convicted. No arrest and it was dismissed. It's still there, but it shows a dismissal. Could that be expunged?

By the way, I always check no on the 8500 when they ask about being convicted of a felony. I don't believe they ask about a misdemeanor?

 

[cale42]

NO the form definitely asks about felony or misdemeanor.

I have a similar situation charged.. but no conviction ever entered. I have always checked no also. Not sure anymore though.

 

[Snakum]

I don't believe they ask about a misdemeanor?

Actually they do now, and they have since at least 2000. After asking about non-traffic convictions the following is written in parenthesis ...

" (Felony or Misdemeanor) "

If your file is never flagged for review by the FAA, they'd never find out about any of it. But if it ever is, for any reason, all arrests on the FCHR have to be accounted for and cleared. There's where the trouble starts.

I've also wondered lately if the airlines report back to the FAA when they find that something in your application doesn't match the info from their background check. For example, the guy I met who was terminated during ground school for not reporting a conviction before the age of 18 on his airline application. Would the airline also call or write to the FAA to let them know that they found a discrepancy? Does anyone know?

I've received a few emails from pilots with similar problems, so I try to post as much information as I can. I'll tell you ... I certainly have a new respect for you pros after all I've been thru the past month. I'd be a mental basket case for a month each year knowing how easily I could lose my livelihood at medical time.


Minh

 

[midlifeflyer]

I also agree, there is no such thing as "expunged".

Actually, there =is= such a thing as "expunged" but (1) the chances are excellent that what Cale described was =not= an expungement and (2) the ultimate legal effect of expungement in any particular case depends on a combination of the complete record in the context of the wide variety of federal and state laws that cover the issue.

 

[rumpletumbler]

I've heard of a place in Florida that will clear your criminal history, give you good credit, and 30 hours right seat in a Seminole and then an interview with Delta for a 777-300 left seat slot for $75,000. If flight time and or type ratings is a hinderance then additional fees may apply and you must supply the logbooks and current certificates. Call today for their "No Medical, No Problem!" special.

 

[pilotman2105]

There is a fundamental difference between a charge and a conviction. A charge may or may not lead to a conviction.

Conviction means that you were found guilty via legal proceedings. A charge simply means that formal proceedings were brought against you in regards to a crime.

If you were charged, but not convicted, I would take this to mean that you can legally check "no" on the 8500. Generally, this would be the case if "the charges were dropped."

 

[ms6073]

This may a bit subjective but I think the answer to the original question really depends on the age of the offense and the state/county/city in which the offense occurred. When I entered the US Army at age 29, I had to disclose an 11-year old arrest for misdemeanor trespass (took a wrong turn onto a private road and found out the owner had absoultely no compassion/sense of humor). I was going into a posistion that required a security clearance and had to undergo a Federal Background Check (FBI) that was conducted while I was in basic. The incident in question had incurred Differred Adjudication/Supervised Probation that then resulted in no conviction, but I did not pursue the legal steps to have the arrest record expunged. Despite the fact that I gave the recruiter complete information on the Court, City, County, and State in which the offense occurred, when I recieved my initial clearance, the record packet that outlined the results of the federal background search indicated no records of the offense but it did outline the three traffic citations I had recieved during the preceding 10-years!

I think that around 94-95 (some as early as 92) when computers started to become mainstream, more and more records began to be transcribed into computer databases making access to such records easier if you had access to the system on which the records were stored. Prior to this, background checks relied pretty heavily on the information provided by the applicant as a starting point as many localities did not have the budget or personnel to maintain such computerized records. This meant that a lot of information would probably end up slipping through the cracks unless someone physically went and opened a file cabinet or accessed a local database - if available.

In the wake of 9-11, I doubt anything will fall through the cracks ever again. For this reason it seems to me that it would be wise for anyone who is concerned about what may turn up to take the plunge and spend the money to have a backgroud investigation completed in advance so there is no question about what needs to be reported!

 

[cale42]

Pilotman.. you make a good point however there is a third realm and I think the one that a lot of us are most interested in. There are a lot of occasions such that a person pleads guilty but no conviction is entered. That is the gray area I know I am trying to resolve. There is no conviction, but there is a misdemeanor charge that I plead guilty too. That is the question du jour.

 

[Pilot124]

Here is a SAMPLE 8500 form



http://www.leftseat.com/pdffiles/8500-8a.pdf

 

[SheGaveMeClap]

I spoke with one of the flight surgeons at the FAA in OKC this morning. I asked about the charge vs. conviction on the Form 8500-8. He said if you were never convicted, check the no box. If you were ever convicted of a felony or misdemeanor, check yes. If you don't know, go back to the courts and ask them if a guilty plea led to a conviction.