thank god for the war on drugs

May 25, 2007 1:22 PM

I was recently terminated due to the state denying licensure based on a felony conviction that no longer exists. it's a little complicated, the old felony is sealed (i was 19 at the time). is the state essentially reopening a sealed case?

in '97 i was arrested for the lowest grade felony of drug posession in south dakota. given two years probation, after which i was given a suspended imposition (pretty much a pardon) and the file is sealed. in that two year window of probation i applied for a job as a caregiver. the dept. of human services denied me a license in mn and i was forced to quit. after the suspended imposition i worked in minnesota as a caregiver for several months, until i moved. fast forward 10 years. worked in other states as a caregiver, emt, etc, all these years with no issue, since it's a sealed case. i've cleaned up my act, everything's good. move back to mn and got hired at a hospital, 3 weeks in, terminated because the state won't allow me to work with patients, based on the previous decision 10 years ago. it sounds like they aren't looking at current information, just the previous decision. i've told the state i have no record, absolutely no one knows of this. the court house that i was in for the drug charge doesn't even have a record of me. i've had background checks done at least 30 times over the years, by at least 2 other states and several private companies. nothing. this doesn't sound right to me at all, the state is reviving a court case that's sealed, isn't that wrong? is that grounds for a lawsuit? lost wages, not to mention being dragged thru the mud. god i'm so fucking pissed off!!!!!

posted by andywolf to law & government (10 comments total)

Are you really sure it's sealed? Usually age 18 is the cutoff for that.
posted by Steven C. Den Beste at 1:26 PM on May 25, 2007

It sounds like you're not being denied because of your sealed criminal record; you're being denied because a past employer has denied you because of a (then-unsealed) criminal record.

They don't have to see the wind in order to see that it's windy.

I sympathize. You probably have no case -- and if you want to know that for sure, you should see a lawyer -- because almost every state is "at will"; that is, you can be terminated at any time for no reason and without recourse.
posted by solid-one-love at 1:35 PM on May 25, 2007

You may want to look into purging your record. At any rate, go for a few free consultations with lawyers and get an idea of where you stand.
posted by rhizome at 1:40 PM on May 25, 2007

You need a lawyer.
posted by caddis at 2:49 PM on May 25, 2007

rhizome is 100% correct. Unless your record is expunged, the conviction exists, even if it is sealed. The answer to the felony conviction question is still yes, thus barring you from a spot at the table.
posted by valentinepig at 3:10 PM on May 25, 2007

the record is expunged, i spoke to the courthouse in south dakota and they don't have a record of it. if it wasn't sealed it would've shown up before this. but the more i think of it solid one love is right. i'm fine everywhere but this one state. three grams of psylocibin mushrooms some hippies gave me. never even done the damn things. i guess the world is much safer. thanks
posted by andywolf at 5:35 PM on May 25, 2007

I'm an attorney and I deal with similar cases quite often. What happened to you when you were nineteen sounds like what we call "diversion" where I practice. Let me explain how it works where I live, and I will then give my theory of what is happening to you.

Diversion is a form of probation, available for both misdemeanor and felony cases. The main requirement for being accepted into the diversion program is that you have no prior criminal record. The philosophy of diversion is that people who commit a crime for the first time, but have no prior criminal history, deserve a second chance, and an opportunity to keep their criminal record clean.

Once the defendant is approved for the diversion program, the imposition of sentence is deferred until the completion of the probation period. Upon successful completion of the probation period, the charges are dismissed. There is no conviction. During the period of diversion, the case appears in the court records as a pending case. The defendant can honestly say, at all points during this process, that they have never been convicted of a crime, because they haven't. (A guilty plea is required in order to go into the diversion program, but the plea is not accepted by the court unless you violate the terms of the probation. Upon successful completion of diversion, the petition to accept the guilty plea is shredded along with the rest of the paperwork.)

Essentially, diversion holds the case open until you complete all the terms of the probation --- and then the case is dismissed.

The situation you have encountered happens occasionally to people who have successfully completed diversion. Here's how it happens, in my experience. Despite the claim that all the records are expunged, there is one exception to that --- there is a database that is maintained, accessible to law enforcement and prosecutors only, that says whether or not you have ever been on diversion before. The reason for maintaining this database is to determine whether you are eligible for diversion (in my state, you can only go on diversion once in your lifetime). They need some place to check, to make sure that candidates for diversion have never been on diversion before.

Some employers and background check companies have personal contacts in law enforcement, who will run casual searches in the diversion databases. This is an abuse of these records, and should not be done. But it happens. It seems possible that you successfully completed a kind of diversion program, and that someone who checked your background had access to a database that confirmed that you had been on diversion for the drug offense.
posted by jayder at 6:12 PM on May 25, 2007 [1 favorite]

If jayder is right, that's a pretty fantastic answer you wouldn't have gotten anywhere else. Let us know how this works out. I agree something seems strange, and that you should probably see a lawyer.
posted by xammerboy at 9:30 AM on May 26, 2007

In my eagerness to share what I know, I missed a detail that may render my previous answer inapplicable. I just realized that you had PREVIOUSLY been denied a license in Minnesota.

in that two year window of probation i applied for a job as a caregiver. the dept. of human services denied me a license in mn and i was forced to quit.

[...]

fast forward 10 years ... move back to mn and got hired at a hospital, 3 weeks in, terminated because the state won't allow me to work with patients, based on the previous decision 10 years ago.

Since Minnesota obviously pulled their old files on you, and saw that you were denied on the basis of your pending drug offense ten years ago, the question is whether their consideration of this matter (since it is sealed or expunged) is appropriate. You need to check the licensing regulations in Minnesota. Those regulations should set out, in detail, what sorts of things can be considered in approving or denying an application. A key question here is whether you actually have a criminal conviction. If you do not have a criminal conviction, it seems that Minnesota is on shaky ground in denying your application.

A parallel situation is when people apply for admission to the bar. The bar applications I have seen, generally ask whether you have ever had a criminal conviction expunged. I have never understood the legality of this question, since the very point of expungement is to give people a second chance.

See an employment attorney in Minnesota; if you were willing to pay a thousand dollars or two, you ought to be able to sit down with them and have them evaluate your situation under Minnesota law. (Free consultations are generally worth about as much as you pay for them.)
posted by jayder at 9:59 AM on May 26, 2007

the state statute says

(f) When a disqualification is based on a judicial determination other than a conviction,
(). When a disqualification is
based on an admission, ().
When a disqualification is based on a preponderance of evidence of a disqualifying act, the
disqualification date begins from the date of the dismissal, the date of discharge of the sentence
imposed for a conviction for a disqualifying crime of similar elements, or the date of the incident,
whichever occurs last.

as far as what the licensing commissioner can look at

(b) Notwithstanding expungement by a court, the commissioner may consider information
obtained under paragraph (a), clauses (3) and (4), unless the commissioner received notice of
the petition for expungement and the court order for expungement is directed specifically to the
commissioner.

i'm not sure what they mean by paragraph (a), clauses (3) and (4). i'm thinking that the record from '97 of being denied for the pending court case falls under preponderence of evidence. though maybe the commissioner receiving court order of the expungement may disqualify the use of that previous finding? there's also a 10 year bar for appealing disqualification based on evidence of no harm. based on length of time with no repeat offenses, plus i've got 8 years of patient contact in other states, i'm having three former co-workers/bosses write letters for me, plus a letter for a judge in south dakota to possibly unseal the case so they can hopefully write a letter explaining the circumstances of the case and that it was expunged.

thanks a ton for the awesome answers and time, especially jader. it's truly appreciated a great deal. i can't afford the attorney though, after moving and my mom's real sick (hence the move).
posted by andywolf at 11:08 AM on May 26, 2007