If the charge is expunged, do I need to report that I was charged or convicted of the offense?
Pennsylvania Expungement Lawyer
Pennsylvania criminal defense attorneys disagree on this issue. Some defense attorneys believe that an expungement and the destruction of the government records allow a person to treat the offense as if it never happened. State College criminal defense attorney Jason S. Dunkle believes that an expungement may result in the destruction of government records, but it does not change history, meaning it does not change what happened with the case. Expungements of criminal charges are generally permitted under section 9122 of the Crimes Code. Section 9102 defines the term “expunge” as “to remove information so that there is no trace or indication that such information existed.” Neither the definition of expunge nor Pennsylvania law or rules of criminal procedure expressly state that the expungement allows a person to treat the offense as if it never happened. Under the Pennsylvania drug code, a person charged with a drug offense may be eligible for an expungement, and expungement under that section expressly provides that “any expunged record of arrest or prosecution shall not hereafter be regarded as an arrest or prosecution.” In the context of expungement under the Drug Code, the Pennsylvania legislature made it very clear that the expungement allows a person to treat the offense as if it didn’t happen, but such language is not included in the expungement under the Crimes Code. While the disparate treatment between expungement under drug cases and that of Underage Drinking cases may not seem fair, we are stuck with the law as written by the legislature. Had the legislature intended that expungement under the Crimes Code would allow a person to treat the offense as if it never happened, then it could have used the same language as that contained in the Drug Code.
Expungements are limited to government records
Expungements are limited to the destruction of government records. It is possible that Internet background search companies uploaded the record from the government database prior to expungement and thereby had a record of the incident to provide to a prospective employer. If a person failed to report a conviction or a charge of Underage Drinking to a prospective employer, and the employer received information about such a charge, it is highly unlikely that the employer would hire the person based upon a perceived deception. While one could argue that he or she believed that the expungement allowed one to forgo reporting the offense, an employer may not accept the legal reasoning and simply believe that the applicant lied.
It is extremely important that an employment or academic application is read thoroughly, and the applicant reports the charge only as required. For example, if the Underage Drinking charge was dismissed, then an employment application that requests information about “convictions” can be answered in the negative. Some newer applications start by requiring disclosure of all non-traffic offenses but then allow a person to forgo reporting if the charges were expunged or sealed by court order. While honesty is the best policy, a person must read the questions on applications carefully and only self-report criminal charges such as Underage Drinking when absolutely necessary.