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Deferred Adjudication
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A new hire's background check came back with a hit for drug posession in the last year. This is something we would usually DQ for. The applicant condends that because the charge was sent to deferred a
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Deferred Adjudication
posted at 3/30/2011 4:36 AM EDT
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Posts: 237
First: 7/10/2007 Last: 8/31/2011 |
A new hire's background check came back with a hit for drug posession in the last year. This is something we would usually DQ for. The applicant condends that because the charge was sent to deferred adjudication it wasn't a conviction. I have always been under the impression that this was a method of disposing of a conviction like a fine or probation.
Would one of you legal eagles care to clarify this for me? THX |
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Deferred Adjudication
posted at 3/30/2011 4:50 AM EDT
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
http://www.avvo.com/legal-guides/ugc/what-is-deferred-adjudication
You should likely check with your state. Deferred Adjudication requires the person to plead guilty but the guilty finding by the judge is deferred pending the successful period of being clean. According to the article above this is supposed to be called a non conviction. You will likely need to establish company policy on this after consulting an attorney. |
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Deferred Adjudication
posted at 3/30/2011 5:17 AM EDT
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
I should have stated above "..should be treated as if there was no conviction".
From a non legal perspective, the person has pled guilty to using. If this was the one and only time and if this is not a "sensitive" position, I might be persuaded to be more lenient than if both of these facts were not the case....... |
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Deferred Adjudication
posted at 4/19/2011 6:21 AM EDT
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Posts: 7
First: 10/3/2006 Last: 8/2/2011 |
In some states you will see it listed as "Deferred Adjudication", "Adjudication Withheld"; and other "1st offender-type" programs like Pennsylvania's "Accelerated Rehabilitative Disposition (ARD)" - which are basically giving the defendant a second chance. When/if they complete all the court requirements like probation, classes, fines, community service, etc - and they complete them successfully and in the time given without other offenses happening, then the court will *generally* dismiss the charges, turning it into a non-conviction on the books. In Texas, the person has to plead guilty or no-contest to the charges in order to receive Deferred Adjudication. The charge typically turns into a conviction if you see that the Deferred Adjudication was revoked - and they often have to go to jail in that case. We always tell our clients (we're a company that does background checks) if the case ended in a dismissal/non-conviction or a revoked/conviction so that they can better understand the disposition.
Patricia GM, Associated Background Check Inc. |
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Deferred Adjudication
posted at 4/25/2011 4:19 AM EDT
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Posts: 237
First: 7/10/2007 Last: 8/31/2011 |
This individual has sent me a letter quoting an internet source saying that a Deferred Adjudication is not considered a conviction in the state of TX. He also had a string of drug convictions 7-10 years back, but that's not something we would normally consider relevant.
It also bothers me that he failed to declare this recent deferred conviction on his application. But now it's now clear if he was obilgated to declare it or not. |
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Deferred Adjudication
posted at 4/25/2011 4:53 AM EDT
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
Ida- Two points
1. If the question on your application says "Have you ever plead guilty..." then the question must be answered YES becuase you cannot receive deferred adjudication unless you plead quilty. If the question is Have you ever been Convicted then no would be correct. 2. Here is a formal writeup In Texas, especially for first time offenders, there is often a plea option for Deferred Adjudication. Defendants often take a plea for Deferred Adjudication without actually knowing what it is. I will explain it here. 1 "Deferred Adjudication" In short, Deferred Adjudication is a type of probation. A defendant is placed on a probation for a certain period of time. If the probation is successfully completed, the case is "dismissed." A defendant will enter a GUILTY plea, but the judge does not find the defendant guilty and instead "defers" the finding of guilt. Pleading guilty for Deferred Adjudication IS NOT considered a conviction under Texas law. A criminal background check will show the arrest for the charge, will show the Deferred Adjudication, but it will not show a conviction. 2 Difference between Deferred Adjudication and "Straight" Probation. The major difference between Deferred Adjudication probation and regular, or "straight" probation, is that the deferred is not considered a conviction and the straight probation is a conviction. There is also one key difference and that is the consequences of violating the probation. A violation of a Deferred Adjudication type of probation opens up the defendant to the entire range of punishment. For example, if a defendant takes a plea for 10 years of deferred on a 3rd degree felony, the punishment range for that crime is 2-10 years in prison. If a defendant is violated while on deferred, the judge can sentence them up to 10 years in prison. With a "straight" probation, the sentence is pretty much already set. Using the same felony example, a defendant might plea to a 2 year sentence, probated for 10 years. So the defendant would be looking at a potential 2 year sentence upon violation. 3 Advantages of Deferred Adjudication There are a few advantages a Deferred Adjudication type of probation can provide. Since it is not considered a conviction, it can prevent some consequences that normally come with a conviction. For example, drug convictions in Texas come with a suspension of the defendant's drivers license. Pleading to a deferred will keep that from happening. Another major advantage is the fact that a defendant can file what is called a petition for non-disclosure after successful completion of a deferred probation. This essentially seals the criminal record of the offense from private entities. This keeps potential employers, apartment complexes, and many others, from knowing about the offense. |
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Deferred Adjudication
posted at 4/26/2011 4:02 AM EDT
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Posts: 237
First: 7/10/2007 Last: 8/31/2011 |
Thanks, it seems he is correct then about the Def. Adj. not being a consideration for employment.
Our application reads "Have you ever been convicted of a crime (other than traffic violations)?". He disclosed one conviciton 10 years ago, but failed to disclose 4 other prior convictions between 1991 & 1999. Would his failure to disclose these convictions be a disqualification factor even though they are to far back to a consideration themselves? |
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Deferred Adjudication
posted at 4/26/2011 4:42 AM EDT
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
IMO the stuff that occurred 12+ years ago is probably not relevant although you have not told us what the position is.
Does he have a full valid, verified, work history that you are comfortable with for the past 12 years? If yes I would say your risks are low. |
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