Total Health Law Blog
This is the second post in a series related to the Pretrial Diversion Program in Georgia. The first post provided an overview of the Pretrial Diversion Programs in Georgia and the potential impact on a successful participant’s criminal record. This post focuses on how successful completion may impact a participant’s responses to questions relating to the offense on employment, licensing, and credentialing applications. If you have questions regarding this blog post or need counsel relating to your professional responsibilities after an arrest or conviction, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@hamillittle.com. You may also learn more about our law firm by visiting www.hamillittle.com.
For clients who have been arrested and charged with an offense, the concern is how to answer offense-related questions on questionnaires while participating in and after completing a pretrial diversion program. Generally, there are questions on licensure, credentialing, and employment applications that ask about criminal offenses, such as “Have you ever been arrested? Have you ever been charged with a crime? Have you ever been convicted of a crime?”
At the outset, while participating in a Pretrial Diversion Program and after successful completion, the answer to “Have you ever been convicted of a crime” is honestly “no” because there has been no conviction.
The most complicated answers are to questions relating to the arrest and charge. We highly advise discussing with counsel how best to respond to professional questionnaires. The strategies for responding differs for each individual and each situation.
While Participating in the Program
If an individual is asked about an arrest or charge while participating in a pretrial diversion program, the answers to the questions are “yes” because nothing has been restricted and if an agency, a board, or an employer were to run a background check on the individual, it would likely reflect the arrest and charge.
After Successful Completion of the Program
If the record has been restricted under O.C.G.A. § 35-3-37, the transparent and honest answer is still “yes” to both questions. Our firm recommends transparency and honesty when responding to professional inquiries, particularly after a successful completion of a Pretrial Diversion Program because it is unlikely that any board, agency, or employer will penalize an individual after completing a pretrial diversion program. However, the purpose of the Pretrial Diversion Program is to attempt to reform offenders and prevent the offense from penalizing a reformed offender. If the recorded is truly restricted in an individual’s situation (and does not fall under O.C.G.A. § 35-3-35(a)(1.2) or any other exception), counsel may, depending on all the facts, advise individuals with a restricted record to answer “no” to the questions: Have you ever been arrested? Have you ever been charged with a crime?
Please note, some questionnaires attempt to get around sealed and restricted records by specifically asking whether you have been arrested or charged regardless of whether the matter was ultimately sealed, restricted, etc. In this situation, it is best to get the advice of counsel on how best to answer.
If you have questions regarding this blog post or need counsel relating to your professional responsibilities after an arrest or conviction, you may contact us at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@hamillittle.com. You may also learn more about our law firm by visiting www.hamillittle.com.
*Disclaimer: Thoughts shared here do not constitute legal advice.