Does Pretrial Diversion Show Up on Background Check? Exploring the Intersection of Legal Nuances and Employment Screening

Pretrial diversion programs are designed to offer individuals accused of certain crimes an alternative to traditional prosecution. These programs often involve rehabilitation, community service, or other conditions that, if successfully completed, result in the dismissal of charges. However, a common concern among participants is whether their involvement in such a program will appear on a background check, potentially affecting their employment prospects, housing applications, or other opportunities. This article delves into the complexities of pretrial diversion and its visibility in background checks, offering a comprehensive analysis of the factors at play.

Understanding Pretrial Diversion

Pretrial diversion is a legal mechanism that allows individuals to avoid formal prosecution by agreeing to specific conditions set by the court. These conditions may include attending counseling, completing community service, or undergoing substance abuse treatment. The goal is to rehabilitate the individual and prevent future criminal behavior, rather than imposing punitive measures.

Eligibility and Process

Eligibility for pretrial diversion varies by jurisdiction and the nature of the alleged offense. Typically, first-time offenders or those accused of non-violent crimes are more likely to be considered. The process usually involves:

1. Application: The defendant or their attorney submits a request for pretrial diversion.
2. Evaluation: The court assesses the individual’s background, the circumstances of the offense, and their likelihood of successful rehabilitation.
3. Agreement: If approved, the defendant agrees to the conditions of the diversion program.
4. Completion: Upon successful completion, the charges are dismissed, and the case is closed.

Background Checks: What Do They Reveal?

Background checks are a common tool used by employers, landlords, and others to assess an individual’s history. These checks can vary in scope, from basic criminal record searches to more comprehensive investigations that include credit history, employment verification, and more.

Types of Background Checks

1. Criminal Record Checks: These searches look for convictions, arrests, and sometimes even charges that did not result in a conviction.
2. Employment Verification: Confirms past employment, positions held, and sometimes reasons for leaving.
3. Credit Checks: Assess financial responsibility, often used by landlords and financial institutions.
4. Education Verification: Confirms degrees, certifications, and educational institutions attended.

Does Pretrial Diversion Show Up on Background Checks?

The visibility of pretrial diversion on background checks depends on several factors, including the jurisdiction, the type of background check conducted, and the policies of the organization requesting the check.

Jurisdictional Variations

Different states and countries have varying laws regarding the disclosure of pretrial diversion programs. In some jurisdictions, successful completion of a diversion program results in the sealing or expungement of the record, making it inaccessible to most background checks. In others, the record may remain accessible, especially if the check is conducted by law enforcement or government agencies.

Type of Background Check

1. Standard Criminal Record Checks: These may or may not include pretrial diversion, depending on the jurisdiction and the policies of the background check company.
2. Fingerprint-Based Checks: Often used for government positions or sensitive roles, these checks may reveal more detailed information, including pretrial diversion.
3. Self-Disclosure: Some applications ask specifically about participation in diversion programs, regardless of whether they appear on a background check.

Organizational Policies

Employers and other entities conducting background checks may have their own policies regarding the consideration of pretrial diversion. Some may view it as a positive step towards rehabilitation, while others may see it as a red flag.

Legal Protections and Rights

Individuals who have completed pretrial diversion programs may have certain legal protections regarding the disclosure of their participation. For example:

• Expungement: In some jurisdictions, successful completion of a diversion program allows for the expungement of the record, effectively erasing it from public view.
• Sealing: Similar to expungement, sealing a record restricts access to it, often limiting it to law enforcement or specific government agencies.
• Ban the Box: Some states and municipalities have “ban the box” laws that prohibit employers from asking about criminal history on initial job applications, giving individuals a chance to explain their circumstances in person.

Practical Implications

The impact of pretrial diversion on background checks can have significant practical implications for individuals seeking employment, housing, or other opportunities.

Employment

Employers may view pretrial diversion differently depending on the nature of the offense and the individual’s rehabilitation efforts. Some may see it as a sign of taking responsibility and making positive changes, while others may be concerned about potential risks.

Housing

Landlords conducting background checks may also consider pretrial diversion. While some may be understanding, others may be hesitant to rent to someone with a criminal history, even if the charges were dismissed.

Professional Licensing

Certain professions require background checks as part of the licensing process. Pretrial diversion could potentially affect an individual’s ability to obtain or maintain a professional license, depending on the licensing board’s policies.

Conclusion

The question of whether pretrial diversion shows up on a background check is complex and depends on various factors, including jurisdiction, the type of background check, and the policies of the organization conducting the check. While successful completion of a diversion program can lead to the dismissal of charges and, in some cases, the sealing or expungement of records, it is not always guaranteed to remain hidden from all background checks. Individuals considering or participating in pretrial diversion should be aware of their rights and the potential implications for their future opportunities.

Related Q&A

Q: Can pretrial diversion be expunged from my record? A: In many jurisdictions, successful completion of a pretrial diversion program can lead to the expungement or sealing of the record, making it inaccessible to most background checks. However, this varies by location, so it’s important to consult with a legal professional.

Q: Will pretrial diversion affect my ability to get a job? A: It depends on the employer and the type of background check they conduct. Some employers may view pretrial diversion positively as a sign of rehabilitation, while others may be more cautious. “Ban the box” laws in some areas also help by delaying criminal history inquiries until later in the hiring process.

Q: How can I find out if my pretrial diversion will show up on a background check? A: You can request a copy of your own background check to see what information is being reported. Additionally, consulting with a legal professional can provide clarity on how pretrial diversion is handled in your jurisdiction.