MAINE CRIMINAL BACKGROUND CHECKS.

Posted June 3, 2014, by Edmund R. Folsom.

 

What shows up on a person’s Maine criminal history report? People who have been charged with a crime are forever raising questions about what will show up on their criminal record if a prospective employer does a background check. The answer is complicated, but what people should keep foremost in mind is that dishonesty is ordinarily the worst policy in such matters. If an employment application asks about charges, convictions, etc., the first thing to do is pay careful attention to the question. For instance, if the question is whether the applicant has ever been convicted of a crime, the correct answer is “no” if the applicant was charged but never actually convicted, and “yes” if the applicant was actually convicted. These days, though, employers tend to ask broad questions, to draw out information about more than just convictions, so a job applicant might be asked whether she has ever been charged, arrested or summonsed for a criminal offense, been placed on any type of pretrial diversion program, had a case continued without a finding, been placed on deferred disposition, etc. Although the applicant might honestly wish she could answer the questions differently, a dishonest response is dangerous. In fact, when applying for a job with a federal agency, a dishonest answer is a felony. With that in mind, the following provides an overview of what Maine’s Criminal History Record Information Act (hereinafter referred to as The Act) dictates will show up on a person’s criminal record.

First, there is a difference between what will show up on a criminal record if a law enforcement agency checks it and what will show up if a member of the general public checks it. Law enforcement agencies, or “criminal justice agenc[ies]” in the language of The Act, have access to both “public criminal history record information” and “confidential criminal history record information.” The general term “criminal history record information” includes all information identifiable to a specific adult (for the sake of simplicity, I am leaving juveniles out of the discussion) that connects that person with formal involvement in the criminal justice system either as an accused or convicted criminal defendant. 16 M.R.S. §703(3). This includes information about arrests, summonses, bail, formal charges, and any and all types of formal charge dispositions. Id. In the design of The Act, the subcategory “confidential criminal history record information” is carved from the general category of “criminal history record information.” 16 M.R.S. §703(2). All criminal history record information that is not “confidential criminal history information” is “public criminal history record information.” 16 M.R.S. §703(8). “Public criminal history record information” may be disseminated to anyone and everyone for any and all purposes. 16 M.R.S. §704(1). “Confidential criminal history record information” may not be disseminated to the members of the general public. 16 M.R.S. §705(1)-(3). For purposes of this discussion, “confidential criminal history record information” should best be understood as information that may only be disseminated to other criminal justice agencies for purposes of (1) the administration of criminal justice, and (2) criminal justice employment.*  See 16 M.R.S. §705(1)(A). To determine whether specific information in a given person’s criminal history may be disclosed during a routine record check for non-governmental employment, it is necessary to determine whether the information is confidential, because if it is confidential it may not be disclosed, but if it is not confidential it may be disclosed to anyone.

So what types of criminal history record information are confidential?

1. If a person is not a fugitive from justice, and if more than 1 year has passed since the date of summons or arrest, and if there is no active prosecution pending of a criminal charge that stems from that arrest or summons, at that point information about the summons or arrest becomes confidential. 16 M.R.S. §703(2)(A). The converse is that the same information is public for one year after arrest or summons.   In practical application, if a case is filed or a deferred disposition is entered into, it will appear to the State Bureau of Identification that there is no active prosecution pending during the filing or deferred disposition period.   Once one year of inactivity passes, from the date of the last activity that indicates active prosecution, information pertaining to the charge or charges at issue is treated as confidential.

2. Information disclosing that police decided not to refer a matter to the prosecutor’s office is confidential. 16 M.R.S. §703(2)(B).

3. Information disclosing that a prosecutor decided not to approve a criminal charge (issued a “no complaint”) is confidential. 16 M.R.S. §703(2)(C).

4. Information disclosing that a grand jury found insufficient evidence to issue an indictment (issued a “no bill”) is confidential. 16 M.R.S. §703(2)(D)

5. Until August 1, 2014, in a case involving a person found by the court be incompetent to stand trial, information disclosing that a criminal proceeding against that person has been indefinitely postponed or dismissed because of the incompetency finding is confidential. On and after August 1, 2014, information in such cases that discloses the proceedings have been delayed for more than a year or have been dismissed (versus delayed indefinitely or dismissed, pre-8/1/14) is confidential. 16 M.R.S. §703(2)(E).

6. Until August 1, 2014, information that a criminal charge has been “filed” is confidential if the filing period is indefinite or for more than one year. On and after August 1, 2014, information that a charge has been “filed” is confidential if more than one year has passed since the date of the filing. 16 M.R.S. §703(2)(F). At the end of a filing period, a case is dismissed.  Both before and after August 1, 2014, information about the dismissal at the end of the filing term is confidential (as discussed in paragraph numbered 7, immediately below).

7. Information disclosing that a criminal charge has been dismissed either with prejudice by a court or “with finality by a prosecutor” is confidential unless the dismissal was part of a plea agreement. 16 M.R.S. §703(G). If the dismissal was part of a plea agreement, the fact of dismissal is not confidential and it will be reported along with information regarding the other charges involved in the same plea agreement. The rule that information regarding a dismissal is not confidential unless the charge was either dismissed with prejudice by a court or dismissed with finality by a prosecutor means that when a court dismisses a case without prejudice or a prosecutor does not manifest an intention to finally terminate the prosecution (i.e. when the prosecutor leaves open the chance to resume prosecution upon gathering further evidence, securing a witness, etc.) the information pertaining to that dismissal is not confidential.

8. Information that a person has been acquitted of a criminal charge is confidential. 16 M.R.S. §703(H).

9. Information “disclosing that a criminal proceeding has terminated in a mistrial with prejudice” is confidential. 16 M.R.S. §703(I).

10. Information disclosing that a person was granted a full and free pardon or amnesty is confidential. 16 M.R.S. §703(L).

11. Information disclosing that a criminal proceeding was terminated because the court lacked subject matter jurisdiction or lacked jurisdiction over the defendant is confidential. 16 M.R.S. §703(J) and (K).

If a particular bit of criminal history information is not of a type described in paragraphs 1-11 above, it is public information and will show up on a criminal background check requested by anyone.  If the information falls within what is described in paragraphs 1-11 above, it will not show up on a criminal background check requested by anyone who is not acting on behalf of a “criminal justice agency.” It is important to understand, though, that the term “criminal justice agency” covers more than just police agencies. It also includes “federal courts, Maine courts, courts in any other state, the Department of the Attorney General, district attorney’s offices and the equivalent departments or offices in any federal or state jurisdiction.” 16 M.R.S. §703(4). Because confidential criminal history record information may be disseminated by one criminal justice agency to another for either (1) “the purpose of the administration of criminal justice” or (2) “criminal justice agency employment,” a person’s confidential criminal history record information will show up on a background check for employment with the courts, the A.G.’s Office, a D.A.’s office, etc.

Anyone wishing to see what shows up on his or her publicly available criminal history report can request a copy from the State Bureau of Identification, online at  http://www5.informe.org/online/pcr/ .  If there is something on that record that should not be there, the person can contact the State Bureau of Identification and seek removal of that information.

The Criminal History Record Information Act is complex and the above summary does not cover every nuance. For instance, certain confidential criminal history record information may be disseminated to the public for particular purposes within 30 days of the disposition at issue, 16 M.R.S. §705(1)(F), and may be disseminated to any person who makes a particular inquiry as to whether a particular named person was summonsed, arrested, detained or formally charged on a specific date, 16 M.R.S. §705(E). The above summary should, however, provide some help understanding the types of information that will show up on a Maine criminal background check, depending on who requests the background check and for what purpose.

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* Confidential criminal history record information may be disseminated to criminal justice agencies for other limited purposes, and may be disseminated to entities other than criminal justice agencies for limited purposes and under limited circumstances that are too complicated and marginally relevant to merit detailed discuss in this overview. See 16 M.R.S. §705(1)(B)-(G).

This article is for informational purposes only. It is not intended as legal advice and should not be taken as legal advice.

 

MAINE CRIMINAL BACKGROUND CHECKS.

 



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