My state expungement doesn't work

[robflyhawker]

What is the name of your state? california

I am a recovering addict with three years clean and Sober. Three years ago I was convicted of possession of a controlled substance. I was offered treatment instead of prison and the dismissal of my conviction after sucessful completion of treatment in return for a plea of guilt. My attorney told me that there would be no conviction after completion.

Two years later I completed my program, the court set-aside the Conviction, entered a plea of Not guilty and dismissed the case p.c.1210.1(d)(1) Under this law the conviction is deemed to have never occured and a record pertaining to the conviction cannot be used to deny me any license, benefit, certificate, or emplyment.

My life long career is in the transportaion industry, which is now subject to federal security regulations after 911, that disqualify me because the Transportation Security Administation's contention that an expungement under state law does not nullify the conviction under federal law.

If I am succesful in getting the court in california to vacate the judgment, will I be able to pass the TSA criminal history record check? Any sugestions would help, and if your going to tell me to find a new line of work, don't bother replying at all

 

[GaAtty]

First, you did not say if your conviction was for state law violations or federal. I will assume state law.
It sounds like your conviction was what is termed in my state as "first offender". In other words, if you complete the program, there is no conviction record. If there is no record, and no conviction,then it is puzzling why you need an expungement. You cannot expunge what is not there. I think that, based on that, you misread the Transportation regulations. For that reason, you also cannot vacate the judgement, because there is no record to vacate. You should get a copy of your crminal background check to see if this conviction shows. If it does, then fuss at the California court and get them to take it off.
If you are dealing with non-attorneys at the Transpotation department, , don't take their advice. This is complilcated even for attorneys.
I would suggest that you get your record clear and then apply. If Transportation turns you down based on no record, you should find a civil rights attorney who does license denial by governmental administrative agencies.

 

[garrula lingua]

I wouldn't expect expungement to work with TSA employment.

Any arrest is grounds for refusal of employment by a law enforcement agency; prior use of drugs is also a reason (expungement didn't erase either of those facts - you were arrested & you used drugs).

Expungement works with private employers, not a governmental law enforcement agency.

Even if you hire a fantastic civil rights atty, TSA should not (re)hire you.

BTW I have heard several, in your situtation, complain that they can't be police officers after completing a DEJ program such as yours.

You were never guaranteed:

"the conviction cannot be used to deny me any license, benefit, certificate, or emplyment."

This DEJ referral still shows up on your rap sheet, and always will, for law enforcement purposes.

 

[JETX]

If I am succesful in getting the court in california to vacate the judgment, will I be able to pass the TSA criminal history record check?

Of course, no one can answer that with any accuracy without reviewing both the FACTUAL circumstances of your conviction and the TSA hiring standards. HOWEVER, I will opine the answer is no.
What happens in your state... and the protections given by your state laws as to expungement or removal of record, has NO effect on the FEDERAL level. The fact remains, you committed a criminal act, you were caught and you were convicted (guilty plea).
Those facts remain valid at the federal level, even though they may be waived at the state level.

Any sugestions would help, and if your going to tell me to find a new line of work, don't bother replying at all

So, you really don't want an honest and accurate answer, do you??

Also, ignore 'GaAtty'.... he is NOT an attorney, and though his post LOOKS good, it is full of errors and misconceptions.

 

[rmet4nzkx]

What is the name of your state? california

I am a recovering addict with three years clean and Sober. Three years ago I was convicted of possession of a controlled substance. I was offered treatment instead of prison and the dismissal of my conviction after sucessful completion of treatment in return for a plea of guilt. My attorney told me that there would be no conviction after completion.

Two years later I completed my program, the court set-aside the Conviction, entered a plea of Not guilty and dismissed the case p.c.1210.1(d)(1) Under this law the conviction is deemed to have never occured and a record pertaining to the conviction cannot be used to deny me any license, benefit, certificate, or emplyment.

My life long career is in the transportaion industry, which is now subject to federal security regulations after 911, that disqualify me because the Transportation Security Administation's contention that an expungement under state law does not nullify the conviction under federal law.

If I am succesful in getting the court in california to vacate the judgment, will I be able to pass the TSA criminal history record check? Any sugestions would help, and if your going to tell me to find a new line of work, don't bother replying at all

Like many, you falsely assumed your deferred adjudication and potential expungement removed all trace of your arrest or conviction. Essentially it only removes the public record or access to the record by being sealed, after your sentence and probation are successfully completed. The record is still available to governmental entities, internet access may still remain accessable including the fact that an expungement exists and this may vary by governmental entity or jurisdiction. You will have to answer questions re your criminal history honestly in the future, so you will have to be explaining this the rest of your life. What have you been doing re this during your probation? There are also databases which store criminal records, they are not affected by an expungement. Please refer to California Penal Code 1203.4. Have you filed the petition for expungement? What grounds would you use to petition to have the verdict vacated? Were you represented by a criminal defense attorney at your original conviction, what did they say?
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=13646913187+0+0+0&WAISaction=retrieve
Expungement in no way guarentees your right to work or to fail to disclose your criminal history.

 

[robflyhawker]

My expungement was under 1210.1(d)(1), not 1203.4 which has some additional protection(retroactive arrest and conviction dismissal) , but at the state level does me no good. This is a state conviction not a federal conviction. It's a one way street with the Feds for the most part.

The TSA will accept an expungement as long as there are no conditions or legal diabilities after the expungement, and both these state expungments carry firearm conditions. (legal guidance document on CHRC).

This is why I am motioning to vacate, inorder to get all my civil rights back, thus TSA policy will allow me to resume my lifelong, 20 year, career and way of life.

My guilty plea was based on misinformation given to me by my attorney at the time.
Had I known the dismissal would not be recognized under federal laws that regulate my proffession, I would have never agreed to dispose the case againts me the way I did.

I didn't find this out untill 2 1/2 years after the gulty plea, when my case was dismissed and I tried to go back to work in my proffession. This matter is causing enormous hardship because without working in my proffession I am struggling to make ends meat and our lives are very difficult.

 

[rmet4nzkx]

My expungement was under 1210.1(d)(1), not 1203.4 which has some additional protection(retroactive arrest and conviction dismissal) , but at the state level does me no good. This is a state conviction not a federal conviction. It's a one way street with the Feds for the most part.

The TSA will accept an expungement as long as there are no conditions or legal diabilities after the expungement, and both these state expungments carry firearm conditions. (legal guidance document on CHRC).

This is why I am motioning to vacate, inorder to get all my civil rights back, thus TSA policy will allow me to resume my lifelong, 20 year, career and way of life.

My guilty plea was based on misinformation given to me by my attorney at the time.
Had I known the dismissal would not be recognized under federal laws that regulate my proffession, I would have never agreed to dispose the case againts me the way I did.

I didn't find this out untill 2 1/2 years after the gulty plea, when my case was dismissed and I tried to go back to work in my proffession. This matter is causing enormous hardship because without working in my proffession I am struggling to make ends meat and our lives are very difficult.

Even if you are to successfully have the conviction dismissed, you still have to answer the governmental entities questions, that is the exception, therefore because your employment or the employment you seek requires you to answer thee quesitons, you must answer them even at a state or local level. It is up to the employer whether or not they chose to employ you.
Here is the language of that section:

1210.1. Possession of Controlled Substances; Probation; Exceptions
....
(d) Dismissal of charges upon successful completion of drug
treatment
(1) At any time after completion of drug treatment, a defendant
may petition the sentencing court for dismissal of the charges. If
the court finds that the defendant successfully completed drug
treatment, and substantially complied with the conditions of
probation, the conviction on which the probation was based shall be
set aside and the court shall dismiss the indictment, complaint, or
information against the defendant. In addition, except as provided
in paragraphs (2) and (3), both the arrest and the conviction shall
be deemed never to have occurred. Except as provided in paragraph
(2) or (3), the defendant shall thereafter be released from all
penalties and disabilities resulting from the offense of which he or
she has been convicted.
(2) Dismissal of an indictment, complaint, or information pursuant
to paragraph (1) does not permit a person to own, possess, or have
in his or her custody or control any firearm capable of being
concealed upon the person or prevent his or her conviction under
Section 12021.
(3) Except as provided below, after an indictment, complaint, or
information is dismissed pursuant to paragraph (1), the defendant may
indicate in response to any question concerning his or her prior
criminal record that he or she was not arrested or convicted for the
offense. Except as provided below, a record pertaining to an arrest
or conviction resulting in successful completion of a drug treatment
program under this section may not, without the defendant's consent,
be used in any way that could result in the denial of any employment,
benefit, license, or certificate.
Regardless of his or her successful completion of drug treatment,
the arrest and conviction on which the probation was based may be
recorded by the Department of Justice and disclosed in response to
any peace officer application request or any law enforcement inquiry.
Dismissal of an information, complaint, or indictment under this
section does not relieve a defendant of the obligation to disclose
the arrest and conviction in response to any direct question
contained in any questionnaire or application for public office, for
a position as a peace officer as defined in Section 830, for
licensure by any state or local agency, for contracting with the
California State Lottery, or for purposes of serving on a jury.

 

[robflyhawker]

Yea I know, my employer knows all about my history. They wanted to hire me anyway after proving to them the quality of my program of recovery. Thats not the problem. The probblem is that TSA expungement policy prevented them from hiring me after the dismissal because of the firearms disability.

 

[rmet4nzkx]

What type of work in the transportation industry do you want to do that requires your to cary a weapon? Even so, it is not the fault of the code for expungement or state law and falls under the exceptions. It looks like you will need to find different employment, something you should have thought about before becomming addicted to illegal substances.

 

[robflyhawker]

I am not required to carry a gun in my proffession in aviation. I've never wanted a gun, had a gun or fired a gun in my whole life. I need all my civil rights restored in order for the TSA policy to recognize the expungement so I am not automaticly disqulified under new federal aviation security regulations enacted after 911 that require all transportation workers that have access to secured areas, not to have any disqulifying offence. Simple possession is on that list. Felony drunk driving where a person is actualy injured is not.
Checkout CFR49 1544.229
The TSA removed simple possession from the list under land and maritime security regulation because in their own words " simple possession does not indicate a pattern of violance or discption that would give rise to a security issue". (CFR 1572) If the TSA thought I was an actual security threat they could and would put me on the no-fly list, they do not need a conviction to do this. They havent done this because I've never given them or anyone reason to believe that I am an actual threat to security. The denial for my unescorted access authority is based solely and automaticly of this expuneged conviction. My record only indicates a personal addiction from which I have made a well documented recovery.

Furthermore, nobody in thier right mind ever chooses to become addicted. The problem is that when were addicted we are not in our right minds. The disease of addiction is a complicated issue that is easily misunderstood by most people, and I don't want to go into a separate issue that you probebly don't understand.

What I am seeking today are solutions. It is my belief that almost anything is possable if we put our minds to it, that fact that I have not used any subtance in 3 years is testament to that

 

[rmet4nzkx]

I am not required to carry a gun in my proffession in aviation. I've never wanted a gun, had a gun or fired a gun in my whole life. I need all my civil rights restored in order for the TSA policy to recognize the expungement so I am not automaticly disqulified under new federal aviation security regulations enacted after 911 that require all transportation workers that have access to secured areas, not to have any disqulifying offence. Simple possession is on that list. Felony drunk driving where a person is actualy injured is not.
Checkout CFR49 1544.229
The TSA removed simple possession from the list under land and maritime security regulation because in their own words " simple possession does not indicate a pattern of violance or discption that would give rise to a security issue". (CFR 1572) If the TSA thought I was an actual security threat they could and would put me on the no-fly list, they do not need a conviction to do this. They havent done this because I've never given them or anyone reason to believe that I am an actual threat to security. The denial for my unescorted access authority is based solely and automaticly of this expuneged conviction. My record only indicates a personal addiction from which I have made a well documented recovery.

Furthermore, nobody in thier right mind ever chooses to become addicted. The problem is that when were addicted we are not in our right minds. The disease of addiction is a complicated issue that is easily misunderstood by most people, and I don't want to go into a separate issue that you probebly don't understand.

What I am seeking today are solutions. It is my belief that almost anything is possable if we put our minds to it, that fact that I have not used any subtance in 3 years is testament to that

Your conviction was after 9-11 wasn't it? While you may not have chosen to become addicted per se, you did choose to engage in illegal activities with known consequences. While I commend you for your recovery to date, it is only of short duration. I cannot advise you other than the reasons why you must report your criminal history even in the exceptions noted above including but not limited to Federal questionaires and applications. No one here is going to aid and abet you in circumventing the law as it stands, I strongly suggest you find a different form of employment or contact your congressmember or senator's offices, you will find these addresses in the governmental section of your phone book.


Let's say that you were a baggage handler with access to baggage, would we want a recovering addict having access to baggage that might contain illegal substances or firearms? Think about it.

 

[robflyhawker]

I have no problem with disclosure, I believe every potential employer of mine has the right and I have the duty to be honest about what and who I am if there going to hire me for a job.
The issue here is wheather an employer who chooses to hire me despite my record should be regulated not to hire me based on this expuneged conviction for this crime. In my opinion, it was not a serious crime and should not even be a felony. We are talking about Simple possession (.2 grams of cocaine) for personal use. There is no victum, violance, sales manufacturing, transportation, harm or danger to anyone based on this criminal act. You could argue that this crime leads to other serious crimes that do have victums, but so does possession of Gin or Vodka, which is a drug also by the way.
If I had been caught with crystal meth, instead of cocaine, it could have been reduced to a misdemenor since I never went to prision under p.c. 17b. because crytal is a wobbler and cocaine is not under california law. Thus, there would be no security issue with TSA because TSA regulations disqualify felony possession not misdemenor possession. Does the type of drug I was addicted to make me more or less of a security threat. Think about it, really! These laws don't make sence

On another note, I guess I will have to tell my wife that she will have to carry all the luggage from now on when we go on a trip because God only knows what could happen if I am around luggage!
If I can't be trusted around luggage, I guess I should lock myself up in a dark cell untill I get some more clean time behind be, eh! - and I am in no way trying to circumvent the law, I am trying to find a legal solution within the law.

 

[CdwJava]

I have no problem with disclosure, I believe every potential employer of mine has the right and I have the duty to be honest about what and who I am if there going to hire me for a job.

And they have a right not to hire you based upon those admissions.

In my opinion, it was not a serious crime and should not even be a felony.

Your opinion is irrelevent.

There are some who feel that sex with children is not a crime. Their opinion with regard to the legality of their crimes is irrelevent as well.

We are talking about Simple possession (.2 grams of cocaine) for personal use. There is no victum, violance, sales manufacturing, transportation, harm or danger to anyone based on this criminal act.

Don't be absurd! Of course there is harm!

You could argue that this crime leads to other serious crimes that do have victums, but so does possession of Gin or Vodka, which is a drug also by the way.

Alcohol is not a controlled substance like cocaine is.

Thus, there would be no security issue with TSA because TSA regulations disqualify felony possession not misdemenor possession. Does the type of drug I was addicted to make me more or less of a security threat. Think about it, really! These laws don't make sence

Then fight to change the law ... but don't count on it in this lifetime.

As it stands it sounds as if they CAN exclude you based upon the arrest. As a side note, you also would not be able to be hired as a peace officer with a felony conviction.

You really need to hire an attorney to help guide you through this. There MIGHT be a way out for you, but you are going to need help to do it.

- Carl

 

[rmet4nzkx]

Your legal questions have been answered, this is not a debate forum.
You chose Cocaine over Meth, OH WELL!
Get a different job and it is OK to carry your wife's luggage when you travel and also to open doors for her.

 

[robflyhawker]

Thankyou everyone for your help, mabee I should study argumentation and debate its kind of fun! I have retained a very reputable attorney to help me in this matter, it just seems to take forever and this thing is on my mind allot- again thankyou