CRIMINAL RECORDS & EMPLOYMENT BACKGROUND SCREENINGS

One of the biggest fears people have about having a criminal arrest record is that it is open to the public’s view.
From there, the immediate consequences that stem from having an arrested record made public are dire.

For example, a single arrest record can affect a person’s employment stability.
Whenever employers find out that their employees were arrested, the first though that usually
comes to their mind is whether they should fire that person. Because if you were to think about it
from the business owner’s point of view, having an employee that was arrested is not good for
business but a liability.

But that’s not all. In fact, many people also miss out on either being seriously considered for
an employment position or for receiving a promotion that they were working so hard to get. And all of this,
simply because they were arrested. Thus, one thing is for sure, none of this is good.

And that is where Florida’s expungement and sealing relief comes into play.
Having a criminal record expunged or sealed results in the same legal consequence.
In other words, that the criminal records become legally protected as a “confidential” record
and hence, no longer subject to public records’ laws.

In turn, what this means is that neither the government nor the public will have access to the
record of that arrest unless they petition a court and the court signs an order granting access. (An
unusual event).

Nevertheless, the Florida Legislature vis a vis the Florida Statutes for expungements and sealings
carved out certain exceptions where people must voluntarily disclose (i.e., be forthcoming and
tell the truth!) about criminal records which have been previously expunged or sealed.

Why, you might ask? Because of the sensitive nature of the employment positions that this
applies to. For instance, if you were looking to work for the Department of Children and
Families, the Florida Legislature determined that it is in the public’s interest to have individuals
applying for a job that deals with Florida’s children and family matters, to have an absolute truth
involving a person’s criminal background; versus a limited legal truth, which is what
expungements and sealings otherwise afford.

A second example that involves such an exception which requires a full and truthful disclosure
of any previous criminal arrest even if previously expunged or sealed, is The Florida Bar; which
is Florida’s designated association that is in charge of regulating and disciplining all Florida
licensed attorneys. Thus, again, here, the Florida Legislature determined that it is in the public’s
interest to make sure that any applicant for admission into The Florida Bar must be absolutely
forthcoming with regards to their previous criminal history.

Additionally, we welcome you to stay tuned to our Erase The Case Blog section where we will
continue to examine and explain with more detail the positive benefits, neutral facts, and
negative consequences involving criminal history record expungements and sealings.
If you have any specific questions, please do not hesitate to contact us for a free legal
consultation.

The remaining list of exceptions to the expungement and sealing benefit can be found in the
following page from our FAQ’s section:

INTERESTING FACTS ABOUT CRIMINAL RECORDS

A criminal history record can be created in a series of different ways:

The first and most popularly understood method for how a criminal record is created, is when a person is handcuffed and arrested by a law enforcement officer. The second most popularly understood method for how criminal records are created is when a person is indicted.

But this list doesn’t end there.

Other methods for how criminal records are created is when a person is not arrest but instead issued a ‘Notice to Appear’ (in court that is), or when an information or other charging document is filed by a prosecutor.

So, as you can see, there is more than one way for a criminal history record to come into being. But creating a criminal record is relatively easy, however, erasing a criminal record, not so much. Another interesting fact about criminal history records is that there are significant constitutional differences that apply to a single criminal arrest record. What do we mean? As you may well know from your middle school civics class, the United States Constitution has three branches of government: The Legislative Branch, the Executive Branch and the Judicial Branch. And just like the U.S. Constitution, the Florida Constitution (which is an extremely important document!) also has the same three branches of government, but at the State level.

Therefore, when a criminal record is created, there is more than one record created, in fact, there are in theory infinite records created.

Why? How? What do we mean?

Because as soon as an arrest record is entered into the law enforcement agencie’s systems, it is copied forward into the Florida Department of Law Enforcement’s systems, the FBI, Homeland Security, and most shockingly, private third-party criminal background companies; the same companies which then plaster your mugshot all over the internet.

FLORIDA’S EXPUNGEMENT AND SEALING LAW

The law in Florida says that a person can only expunge or seal a criminal history record once in
their lifetime; and while there are a few exceptions to this hardline rule, those cases are far and
few in between.
By now, however, you are probably still asking yourself: But what is an expungement/sealing
anyways?
The answer is simple.
A criminal history record expungement is the legal process through which a person’s criminal
record is physically destroyed from the government’s criminal justice record keeping systems,
making that criminal arrest episode, confidential and not subject to public access.
On the other hand, a criminal history record sealing is the legal process through which a
person’s criminal record is ordered by a court to be made confidential and hence, unavailable for
the government or public to access; although, no physical destruction takes place when a record
is sealed.
Lastly, the reason why there exists an expungement procedure versus a sealing procedure, is
because some criminal records are allowed to be immediately destroyed, while others do not
qualify for immediate destruction. In other words, the Florida Legislature decided that a case
being dismissed should not be treated the same way as a case where the defendant took a plea
and his/her adjudication of guilt was withheld.
Therefore, as you can see, the expungement and sealing of criminal history records is a legal
mechanism created by the Florida Legislature – vis a vis Florida Statutes – by which a person’s
privacy, dignity and public image can be restored and protected from otherwise slanderous and
libelous information.
What this means in every day terms, is that a criminal record which was once open for the whole
public to see, will now be protected from the government’s and public’s view through a process
that makes the arrest record confidential (i.e., classified).
This is a big big deal.
To give you an example, think about it this way:
If a person is unlawfully arrested and eventually that case is dismissed by the prosecutor for
Constitutional reasons (i.e., insufficient evidence), the record of that arrest remans public; a most
unfair outcome.
Why is it unfair you might ask? Because that person will have the record of that unlawful arrest
survive the dismissal of the case in court; because that’s how the law is currently written.

Thus, what happens next is that the criminal history record pops up in dozens, if not hundreds, of
background search companies online. The record is available for the whole world to see with a
simple Google search. And in turn, these innocent people are then subject to risking missing out
on an employment opportunity, a bonus opportunity, receiving a higher insurance premium, a
higher interest rate on a loan, a scholarship application denied, or maybe even a housing
application denied. And these are not all of the possible consequences, the list is bigger.
And all of this, because that person was unlawfully arrested.
Unfair? Absolutely.
That is why the expungement and sealing law exists, and that is why Erase The Case exists as
well!
We get it, expungement and sealings are not a luxury but a necessity!