Can't have been "charged" with a crime

What is the name of your state (only U.S. law)? California, Republic Of Santa Monica


Hello:

i was detained for three days, cited/released for misdemeanor "camping" then went to court, where the prosecutor declined to prosecute. The judge said that if I continued to "camp" then they could still use this against me in the future.

Now, I have a job opportunity, that says I can't ever have been CHARGED with a crime. This is different than most applications that asks if you have any felony/misdemeanor convictions, but then again it is for working at a Naval Shipyard for "Red Badge" clearance. I formerly worked at a Naval Shipyard and had "Red Badge" clearance.

Is this considered "charged" with a crime?

Would this still be on a court record where an employer doing a background check would be able to access the information?

Ordinarily when people use the word "charge" they mean they mean was a formal legal charge filed in the case, for example an indictment, complaint, or information. If the prosecutor declined to prosecute that means you weren't charged. You were arrested, but not charged.

However, sometimes people are sloppy about the language they use, and use "arrested" and "charged" interchangeably.

There is always a record of everything the government does, including arrests. NCIC includes information on arrests, as well as prosecutions and convictions. NCIC is supposed to be limited to law enforcement, not the general public.

Whether a potential employer would find out about an arrest depends on how thorough their background check was. The information is out there, it's just a question of whether they can find it.

elnet said:

Is this considered "charged" with a crime?

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Were you arraigned and asked to make a plea of guilty, not guilty, or no contest? If so, then you were charged.

Would this still be on a court record where an employer doing a background check would be able to access the information?

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Yes. If an employer chose to go to the courthouse, the court website or contact the arresting agency they might find out this information.

Thank you for the Info

To CDWjava - No plea., I sat in the courtroom and the prosecutor called my name and asked me to step out in the hallway, with his "assistant" don't know who she was. He was pleasant and said that he was not going to prosecute. He asked about the circumstances and I told him the details and I mentioned the three days that I was detained. He said to stand by because I still had to talk to the judge. The judge called my name and then the prosecutor repeated that they were not going to prosecute. The judge did say that if this happened again {camping!} they could restore this charge. I said that I understood and then the prosecutor mentioned to the judge that I was detained for three days. The judge had this entered into the "record"? (Can't recall the actual statement if you will)

I have the parts listed below that I was referring to (see the underlined, italizicied and bold sections)

BTW this is the original wording from the ad:

Do you have at least 3 years of shipyard experience?
Have you NEVER been charged with ANY crime?

If you answered "Yes" to both of these questions, we may have an opportunity for you.

XXXXX is recognized as the premier staffing source for tradeworkers from laborers to superintendants to engineers. We offer competitive wages, compensation packages and benifits to our workers.

We are currently seeking hard-working, dedicated, professional, safety-minded individuals for naval shipyard work in Virginia. Current openings are in the fields of: Marine Electrician, Sheet Metal, Insulator, Pipe Fitter, Shipwright, HVAC, Shipfitter, Temporary Service Electrician, and Temporary Pipefitters.

If you are already "Red Badge" qualified or don't have anything on your record AT ALL and are interested in a long-term contract job, reply with a resume via email or fax

Thank you, Kane

The information was very helpful

Kane said:

Ordinarily when people use the word "charge" they mean they mean was a formal legal charge filed in the case, for example an indictment, complaint, or information. If the prosecutor declined to prosecute that means you weren't charged. You were arrested, but not charged.

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I have to respectfully disagree here.

Transporting a person to jail to answer for a crime is a seizure under the 4th AM.

Since a person can not be arrested for "suspicion" in this country, once at the jail, they are indeed charged, or it is a false arrest.

That is why they have arraignments and PC hearings, to determine IF the PC the police justified thier arrest under is sustained or not.

Whether the PC hearing, if arrested without a warrant, or the Prosecutor filing the formal charge to satisfy due process is done or not, the detainee is still initially charged with the crime.

Oh elnet, you can put what you want, but what would you put if the application asked if you were ever arrested?

On review, it does appear that an argument can be made that one is CHARGED under CA law with a crime when arrested. While it seems no complaint was filed, an ellegation was made.

This is also one of the reasons why CA state law generally prohibits private employers from asking about arrests and detentions and only about convictions. I can only assume this job opportunity requires a security clearance so they are pre-screening applicants for their likelihood of passing such a clearance.

I hesitate to suggest how you should answer that question other than to suggest you call their offices and ask what they mean by "charged" or whether your circumstance means you were charged by their definition.

RE: More Info, Thanks BOR and CDW Java

Ok,

BOR:

Well, I never have seen it on an application (I've submitted around 250 or more this year) that asked, if you have been arrested. Most ask if you have ever been CONVICTED for Misdemeanor/Felony convictions, then there is a box to fill in the circumstances. See the example, below.

And then again, I don't think I was "arrested", but detained. When they put me in the cell for three days, they did take all the contents from my pockets, but never took my belt away from me. See the story below. I wasn't even really "told" why I was there, or ever read my rights. When they printed me and photo'ed me, the guy did ask if I wanted to make a phone call, thats when the cop said something about bail (this was Friday morning about 9 am). But then I didn't even receive the citation until Monday morning.

For Example:

GEXPRO Employment Application

For Use by Gexpro and Gexpro Affiliates
An Equal Opportunity Employer

CONVICTIONS/SUSPENSIONS/DEBARMENTS

Any uncertainty in answering the questions below should be resolved in favor of disclosure. This information will not necessarily bar an applicant from employment. The nature and seriousness of the crime, the date of conviction, and the relation to the position sought will be considered.

Applicants need not disclose information pertaining to sealed, expunged, pardoned, or statutorily eradicated arrest or conviction records.

Have you ever been convicted of a felony? Include all pleas of "guilty" or "no contest". Please select yes or no below.
* Please Select One: --Please select-- Yes No

Have you ever been convicted of a misdemeanor within the last seven years OR imprisoned for any type of misdemeanor within the last seven years? Please select yes or no below.
* Please Select One: --Please select-- Yes No

If YES to any of the above questions, please indicate the county, state, year and explain fully below:
County:
State:
Year:
Format: ####
Description:

BOR:


The circumstances, cops drove up at 4:30 am Friday an asked why Me and my two acquaintences were still sleeping in this location when they warned us to move on. I replied politely to the lady cop that I had not seen her before. I think she had warned my two friends for sleeping at a nearby spot and I think she recognized them. She turned to one acquaintance and asked him something and he smarted off with "I have warrants, I am not afraid, take me to jail", playing John Wayne. The warrants were minor, I believe they were for open container, etc. Well, she was like, OK, turn around and she cuffed him and started going through his pockets. She then turned to her partner, a young guy and said, these two are going also, and he cuffed us, also. The male cop called for transport and then started to search my other friend. Transport showed up (Al Unser, Jr.) and he sped me off to jail in about a minute! Well, I sat there in the holding tank, they printed and photoed me, but never told me why I was even taken. I was put in a solitary cell for three days. The guy that shot his mouth off, they let him go in less than two hours. They held my other friend for a couple of days, they held me until 9:30 Monday morning, then gave me a citation to appear later that month, then released me.

Prior to this, I had been stopped for traffic violations EIGHT times, but never got a ticket.

CDWjava:

"I can only assume this job opportunity requires a security clearance so they are pre-screening applicants for their likelihood of passing such a clearance."

You are correct, I had a red badge before, and it allows unescorted access around a naval shipyard. There are a lot of "additional" areas where you still need even more security clearance, like Ocean Engineering or Nuclear spaces (for obvious reasons) And it is probably the Federal Government, since it is in Virginia, so its probably Norfolk. Although it might be Newport News, maybe they got a subcontract, but due the involvement with the US Gov't, they probably require Red Badge clearance.


Thank you both for the assistance and comments

CdwJava said:

On review, it does appear that an argument can be made that one is CHARGED under CA law with a crime when arrested. While it seems no complaint was filed, an ellegation was made.

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I don't know if there is any direct case law on the wording, but if the police arrest you for murder, they are charging you with murder, what else is it, since suspicion arrests are not constitutional.

Whether a "formal" charge takes place under Prosecutorial discretion is another matter.

You can be Indicted by a Grand Jury and charged with Murder, but the charges can later be dropped and an arrest never takes place.

I have reviewed various 4th cases, United States v. Watson, Terry v. Ohio, etc., and while I can find NO direct Constitutional meaning of an arrest being a charge, as in "formal" charge, what else is a custodial arrest, but the taking of a person into custody to answer for a crime.

Admittedly, a state's case law can define it in a way that does not controvene the 4th AM, but I have never read any with such seperate defintions of arrest and charge?

elnet said:

And then again, I don't think I was "arrested", but detained.

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No, you were ARRESTED , no Constitutional question about it, none!!

Arrested

At what point do they need to tell you what crime that you committed? Do they need to read you your rights? They just took me and never told me why.

elnet said:

At what point do they need to tell you what crime that you committed?

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Carl can answer that better than me. I do know in my state, Ohio, if a person is arrested without a warrant, they must be told right then WHY they are being arrested.

Say no CA provision exists like Ohio, if you are arrested without a warrant, the federal constitution requires a PC hearing within 48 hours IF still held in custody. Now I do know in CA, this can take place without the defendant present.

THEN, you need to be arraigned with 48 hours, I have heard Carl state, that is when you MUST be notified of the reason of your arrest.

Do they need to read you your rights?

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Custodial interrogation requires it IF they will seek to use your statements against you.

elnet said:

At what point do they need to tell you what crime that you committed? Do they need to read you your rights? They just took me and never told me why.

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The charges for which you were arrested were on your booking paperwork. You should have been advised of this if no by the arresting officers then at the jail. Typically they advise you of the bail amount and the charges so you can try to arrange bail if you can.

You were advised of the charges at least at the time you were released with a citation to appear in court. I suspect that the officers or the jailers will contend that they did tell you why you were being arrested. That's not really an issue for your circumstance, anyway.

Most arrests will never require Miranda rights to be read. Miranda generally only applies when you are both under arrest and being interrogated. Booking and identification questions are not usually subject to Miranda.

I would still suggest you inquire as to what they consider a charge. You were arrested on charges initiated by the officer but no complaint was apparently filed. If they view a "charge" as a complaint, you should be clear. If they view it as being hooked and booked by the police, then you may be sunk in that regard.

Thank you for all the help

CDW, BOR and all, thank you for the help

elnet said:

CDW, BOR and all, thank you for the help

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You are most welcome, and best wishes on your job prospect.