If you’re applying for a job but have a criminal history, you may be worried about what will show up on a background check. Arrests that didn’t turn into convictions and small infractions may be easily explained to employers, but if you have a misdemeanor conviction, how should you explain it to a potential employer?
Misdemeanors are crimes, and will most likely show up on a background check for the rest of your life — unless you go through the process of expungement. How can you expunge your record if you have a misdemeanor, and is it possible for a background check to not show older misdemeanor crimes?
Let’s look at the definition of a misdemeanor, some common examples, how long it will stay on your record, and what you can do to get it removed (for good) from a criminal background check.
Table of Contents
What is a Misdemeanor?
Misdemeanors are crimes that are less serious than a felony but more serious than a basic infraction. By legal definition, they are considered “crimes of moral turpitude,” which is defined as depravity or wickedness.
Typically, misdemeanors are punished with fines and can include some jail time (incarceration) in a county jail. Infractions typically have no jail time but do include fines, and felonies can include increased jail time in large state prisons or penitentiaries and larger fines.
State Misdemeanors
The treatment of misdemeanors can vary from state to state. Some states may be more lenient, while others might impose higher fines, longer jail times, and may even require community service and probation following a release from incarceration.
Often times state jurisdictions may further categorize misdemeanors into three classes:
- High or gross misdemeanors: The most severe of misdemeanor convictions — but still not as severe as a felony — these may include incarceration for multiple years in a county jail, and high fines well over $1,000.
- Ordinary misdemeanors: These are typical misdemeanors, and may have some jail time with fines over $500.
- Petty misdemeanors: The least severe, these may include jail time less than six months and fines less than $500.
Federal Misdemeanors
Federal jurisdictions handle misdemeanors based on strict federal sentencing guidelines. Their sentencing chart often relies on severity of the crime, past offenses, cooperation with police, and acceptance of responsibility. Sentencing can then be determined as follows:
- Federal Class A: These are the most severe federal misdemeanors, and may be punishable by six months to a year in jail.
- Federal Class B: These may be punishable by one to six months in jail.
- Federal Class C: These are the least severe, and may be punishable by five to thirty days in jail. Anything lower than five days is considered a federal infraction.
Misdemeanor convictions can have a significant impact on job and scholarship opportunities for those that are convicted. Unfortunately, even an arrest for a misdemeanor that later turned into a non-conviction (innocent), can negatively impact job opportunities. It can help to get a court notice of innocence, or to go through the process of expungement if you’ve been convicted of a misdemeanor in the past.
Misdemeanor Crimes
Depending on the state you live in and where the crime was believe to have occured, misdemeanors can vary in definition and sentencing. Additionally, multiple misdemeanor convictions of a similar nature may result in a felony conviction (such as getting three DUIs over a few month’s time — the third may be classified as a felony, depending on your state).
Some common examples of misdemeanor crimes may include:
- Assault
- Disorderly Conduct or Public Intoxication
- Driving Under the Influence (DUI) or Driving While Intoxicated (DWI)
- Minor in Possession of Alcohol
- Non-Violent Crimes (such as drug or drug paraphernalia possession)
- Petty Theft
- Resisting Arrest
- Trespassing
- Vandalism or Criminal Mischief
Do Misdemeanors Go Away?
If you were arrested, but not convicted of a misdemeanor crime, then that arrest may show up on a background check up to seven years after the court record was originally filed. This is subject to the laws set forth by the Fair Credit Reporting Act (FCRA).
However, if you were arrested and convicted of a misdemeanor crime, then your conviction will not go away, and may appear indefinitely on a background check.
Not All Background Checks Are Alike
If an employer is performing a background check, they will be on the lookout for a conviction such as this, but not all background checks will be exhaustive or extensive — some may only go back a few years to a decade, which means older convictions may not appear. Additionally, some employers are more concerned about felonies than they are about misdemeanors, but that isn’t always a guarantee.
This is why it’s so important to try to go through the process of expungement if you have a history of a misdemeanor conviction. If a conviction is sealed or expunged, then it is not allowed to show up on a background check for employment — unless you are applying to a federal job (as most federal jobs will have access to sealed court records).
Additionally, if you do have a misdemeanor and are currently attempting to expunge your record, you may be able to explain your situation to the employer during an interview. Either way, if you have a conviction that is going to appear on a background check, be prepared to explain yourself to help clarify your criminal record.
Can You Get a Misdemeanor Expunged?
Yes, you can expunge a misdemeanor, but there are certain aspects to consider (which will be discussed in the next section below).
Compared to felonies, misdemeanor convictions are easier to expunge. However, not all states allow expungement for certain misdemeanors, and if you have multiple misdemeanors, you will have to request an expungement for each.
Keep in mind, not all expungements will offer a complete dismissal of charges. For example, an expungement will not restore gun-ownership privileges if you were charged with an assault or deadly weapon charge, and charges for sexual offenses may be expunged, but you may still appear on a sex offender registry.
Will Expunged Records Appear on a Background Check?
Expunged or sealed records should not appear on a background check, but mistakes do happen. Third party agencies can often fall into the trap of receiving outdated or inaccurate information, and in the case of this happening, you should be prepared to explain your situation.
If you’ve been told that a conviction appeared on your background check (despite knowing it was expunged by the courts), and the employer is unwilling to hire you, you should have the ability to appeal your record or potentially file a complaint with the agency, the EEOC, and the Federal Tax Commission (FTC).
How to Get a Misdemeanor Expunged
Misdemeanor expungement is fairly common, and in some states misdemeanor juvenile convictions may be expunged (sealed) automatically when the convicted individual reaches the legal age of adulthood (although, this is not always guaranteed). Adult misdemeanor expungements typically have to be requested by the convicted individual.
Expungement goes by a few different names, including:
- “Setting aside a conviction”
- “Petition for dismissal”
- “Record sealing” (most common name for juvenile convictions)
Although misdemeanor expungements are fairly common — and much easier to achieve comparatively to felony expungements — that doesn’t mean they’re easy. There are many aspects to keep in mind when seeking out expungement, and it’s important that you comply with all the requirements set by the court in order for your request to become successful.
Comply With All Requirements
In order to be eligible for a misdemeanor expungement, you must ensure you’ve complied with all the local laws and the requirements set forth by your local court system. Keep in mind that many misdemeanors may be treated differently by each state — some may be seen as more serious in your area compared to others — and each state will have their own expungement expectations or limitations.
The process of expungement must first start off with a written request to the appropriate court. However, before you file that request, you must also be in compliance with the following criteria (which may change depending on your state):
- Complete your probation with no further incidents, violations, or penalties
- Have no pending arrests or proceedings for any criminal convictions
- Ensure you have fulfilled the original sentencing requirements
- Check that you have limited prior charges (for example, in many states the “three strikes” law is still in effect, and may hamper your ability to get a third conviction expunged)
- Follow through on whatever state-required waiting period is expected before you can request your record expungement (this is usually 1 to 3 years after being released from jail or paying fines)
Research Your State’s Laws
Because many states classify certain offenses differently, each state will have their own limitations for misdemeanor expungements. For example, past misdemeanor drug offenses were once seen as severe, but in states that now have legalized cannabis use, those offenses are often given less weight. Some states are even working to reverse many of those charges so that thousands of records could be cleared.
Regardless, it’s important for you to research the local laws to ensure your specific conviction is eligible for expungement. Typically, misdemeanors that are close to a felony conviction (such as Class A or High Misdemeanors) are more difficult to get expunged. A common example may be a DUI that resulted in serious injury to another person or party. One common term you may hear in relation to these sorts of convictions is “wobblers,” as these misdemeanors can easily be treated as felony convictions. Because of this, some states have stricter laws surrounding those convictions.
For a full list of where to find expungement laws, visit Lawyers.com.
Consult an Attorney
Although you do not necessarily need an attorney in order to file for expungement, it is always a good idea to get the help of a paid professional so that you can ensure your request is in compliance with all local laws and requirements. Understanding legal jargon and limitations can be confusing, but lawyers and attorneys have the ability to help you better understand those legal boundaries. They can also give you advice on what you should say when you file your letter.
You should always consider getting legal help when it comes to cleaning up your criminal record.
File a Written Expungement Request
Once you have spoken with an attorney, done your research about local laws, and have followed the necessary steps to be eligible for expungement, then you can start the process of requesting expungement for your convictions.
To start the process of expungement, you must first request in writing that your convictions be reviewed by the appropriate courts. Keep in mind, if you were charged with a federal crime, make sure you outreach the federal courts, and if it was a state or county conviction, outreach the appropriate local court.
Once you have filed your request, return to the first step: ensure that you are complying with all the requirements, not currently awaiting a conviction, staying compliant with probation, etc. It may take some time for the courts to be able to address your letter and return with a ruling, but that wait is certainly worth it.
It can be difficult to live with a misdemeanor conviction on your criminal record, and it can be especially difficult to gain employment with a criminal record. However, there are options for you that can help make your life a little easier, and despite the work it may require, the end result will certainly be worth the effort.
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