Denial Existence or Occurrence of an Arrest after an Expunction

Now, as far as allowing the person to deny the existence or occurrence of the arrest. May deny does not mean that you should deny and there are some important instances in which it’s not a good idea to deny it even though the expunction has been gone through. The big one is; immigration. The immigration the USCIS does not recognize state expunction. So if you have a client who’s applying for naturalization and they don’t admit that they were arrested for something that has been expunged, the feds are not going to recognize that and that could cause them a legal status. They may not get their green card or naturalization.

So, beware of the limitations of that and it does take some time for these records to be expunged as well. The state and the agencies they get the expunction, it takes them sometime 2 or 3 months before they start sending the files back or sending the certification back. So, until that has actually been done that information could very well show up on background checks until it’s physically been expunged. So, until that time, you might want to consider other approaches to just straight up denying it. It may be the kind of thing where if your client has got a recent expunction and they really want this job it may be better for them to go in and say, like I was saying earlier; it was dismissed, its expunged, the prosecutor recommended it and I’m telling you coz I’m a stand-up guy, you know I don’t have to. The law allows me to deny it, but I’m going to let you know about it as well.

Last thing, compliance by DPS and by the other agencies; compliance is extremely important to make sure that you’re actually getting something for your expunction. You want to check the clerk’s file to make sure these files and these certifications are coming back because otherwise, you’re not going to know whether anything has actually happened on them. If the agency has the records, and they send back a certification that; they haven’t complied with the expunction because they don’t have any records and you know they have records, well that should tip you something off that there’s something wrong with your expunction. They’re claiming they don’t have these records, you know that they do, and that gives you a chance to fix that and say; why aren’t you claiming that you don’t comply with this, we know that you have the records, what’s the problem? And it’s a good idea to invest with the membership, at least with one of these background check companies.; they had their problems in the beginning but it’s a lot more accurate now.

So, that’s the kind of place where you can go check and see if your expunction has been really complied with by the private agencies. And then also get your client to get a copy of their criminal history from the DPS or the FBI. And one last thing on the DPS; in every case the DPS is going to send back an affidavit that they have complied with. So, we talked about earlier about the ‘no records trap’ where they’re going to, they’re going to say; we don’t have any records we’re not going to comply with the expunctions. Well, they’re going to send you back an affidavit that says they’ve complied with it. It doesn’t mean that they have done that! Ok? All that means is that; they have looked at it, and in so far as they’re aware based on the information they have, as far as they’re concerned, they’ve complied with it. Ok? But, what you’re getting is the exact same certification that you would get if they actually had complied with it.

So, you have no assurance that DPS has done anything at all. so if it’s a ‘no records file’ they’re going to send back the same certification that they would so, it’s very important that you have your clients go back to DPS get their secure criminal history information to see if DPS has actually done it and that’s really the only way to do it. because, like I said; the file gets destroyed on the first anniversary and the best practice though is to order the file to be returned to you instead of destroyed at the end of that year and that way you know you’re actually getting something for your expunction, you know that you actually have physically in hand the certifications and the file that has been expunged and so you know you’ve done something for your client. So, I’m afraid that’s all of time but,

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez