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Q: Expungement and Non Disclosure in Fed Background Questionnaire SF85P form ( Answered,   0 Comments )
Question  
Subject: Expungement and Non Disclosure in Fed Background Questionnaire SF85P form
Category: Relationships and Society > Law
Asked by: vkgen-ga
List Price: $50.00
Posted: 25 Oct 2006 08:10 PDT
Expires: 24 Nov 2006 07:10 PST
Question ID: 776745
A misdemeanor charge (no arrest/no fingerprints given) was dismissed
and later expunged in Circuit Court in VA. In this case, Can one
safely answer "NO" to Question# 20 in SF85P form - "have you been
arrested for, charged with, or convicted of any offence(s) ?" The
application is for a contract position with a Fed Agency (Not a Law
enforcement Agency and Security Clearance is Not required). Does the
Virginia Expungement Statute provide legal protection to say "NO" to
Employment based background investigation questionnaire ?
Answer  
Subject: Re: Expungement and Non Disclosure in Fed Background Questionnaire SF85P form
Answered By: keystroke-ga on 25 Oct 2006 11:54 PDT
 
Hello vkgen,

Thank you for bringing your question to Google Answers.

I'm happy to tell you that you will be able to lawfully answer "no" to
this question on employment applications or any other documents-- that
is exactly why the expungement is granted.

"EXPUNGEMENT OF ARREST RECORDS AND DOCUMENTATION OF CRIMINAL
PROCEEDINGS IN VIRGINIA: ELIGIBILITY AND PROCEDURES"
http://lsnv.org/Information_Expungement.pdf

"WHAT DOES EXPUNGEMENT OF CRIMINAL RECORDS ACTUALLY DO? IF I AM ASKED ABOUT A
CRIMINAL CASE THAT HAS BEEN EXPUNGED, WHAT CAN I SAY?

Under Virginia law, it is unlawful for anyone having access to expunged court or
police records to open them, review them or disclose information from the
sealed records unless first granted permission by the court that granted the
expungement order. Virginia Code  19.2-392.3?A. In Virginia an employer or
educational institution shall not require an applicant to disclose any information
about an arrest or criminal charge that has been expunged. Virginia Code 
19.2-392.4?A. In plain language, if you are asked on an employment
application whether you have been convicted of a crime or arrested for a
crime (that is covered by an expungement order) you can lawfully answer: no.
The expungement process seals records, but the effect of an expungement
order is to retroactively eliminate the arrest and criminal charge
brought. Access to and unsealing of an expunged criminal record is
only permitted under very
limited purposes by a law-enforcement agency for a criminal investigation.
The Legislature has also prohibited state and local agencies from requiring
disclosure of expunged criminal records in any application or interview for a
license, permit, registration or governmental employment. Virginia Code,  19.2-
392.4?B."

This text can be found on page 11 and 12 of the pdf file.

Under certain circumstances your records can be accessed:

US Law Digest-- Virginia Expungement
http://lawdigest.uslegalforms.com/expungement-of-criminal-records/index.php?dID=5632

"What is an expungement?

The omission, sealing, deletion, or obliteration of records.
Thereafter, the person may legally deny the existence of the records
and may not be denied any permit, license, or employment based upon
the expunged records. However, expunged records may be disclosed for
purposes of employment application as an employee of a law-enforcement
agency or for a pending criminal investigation and that the
investigation will be jeopardized or that life or property will be
endangered without immediate access to the record.  19.2-392.3."

Search terms:
expungement virginia

If you need any additional clarification, let me know and I'll be glad
to assist you.

--keystroke-ga

Request for Answer Clarification by vkgen-ga on 05 Nov 2006 10:52 PST
Thanks for providing/pointing to an authentic source of statute provisions.

Is there any statute/relief/reference which applies to Federal
Employment/Background questionnaire and applications ? In other words,
Are there Federal codes which overrule VA State expungement
provisions. Also, the position could be in/out of Virginia for any
Federal position.

Request for Answer Clarification by vkgen-ga on 09 Nov 2006 18:22 PST
Can you provide clarifications to my questions posted on Nov 5th ?

Clarification of Answer by keystroke-ga on 15 Nov 2006 07:06 PST
Hello vkgen,

I'm sorry about the delay in clarification. The email system is broken
and so Researchers have to go back manually and find clarifications.

State expungements are fully recognized at the federal level.  Since
the Virginia expungement grants the person the right to say "no" on
applications, this includes all federal applications excluding those
of law enforcement agencies.  According to Virginia, the crime almost
as if not committed, and the federal government recognizes this as
well.

I hope this clears up your questions and again, I apologize for the
clarification delay!

--keystroke-ga
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