Deferred judgment not fully sealed
The deferred judgment may seem like a gift. And it is certainly better than a conviction. Other than an acquittal, it is perhaps the only way to diminish a public criminal record in the State of Iowa. I say "diminish" instead of "expunge" because it isn't that simple.
Typically, a deferred judgment grantee in Iowa will plead guilty to an offense as part of a plea agreement. As part of that plea agreement, he or she will then request that the Judge grant a request for a deferred judgment. Deferring judgment will delay the imposition of the conviction- hopefully indefinitely. It will place the defendant on probation for a set period of time and require the defendant to fulfill obligations such as drug or alcohol treatment or community service while on probation.
If the deferred judgment grantee successfully completes his or her term of probation, the probation is discharged and the record of the prosecution is sealed. It will then (and not before) be erased from the online, publicly available court docket and Clerk of Court staff will not disclose information from the file—or that the file even exists—if asked at the clerk’s window. Sounds great, doesn’t it?
However, it isn’t completely sealed. First, the Iowa Department of Criminal Investigation has a record of this deferred judgment. If a potential employer asks an interviewee to sign a release form to obtain this DCI record, the DCI will freely give over to the potential employer any deferred judgment record. Second, private companies mine arrest records that are publicly available on the Internet in newspaper police blotters.
They save that data in server farms across the country in the hopes that a potential employer will someday pay them for a background check. I warn clients who are likely to go into sensitive professions that this information will likely be available to an employer with or without a release.
Moreover, any licensing board will have an investigator on staff who can freely obtain this information from law enforcement to complete a background check for purposes of licensure. For this reason, I rarely recommend a deferred judgment on an OWI (DUI) when a defendant is eligible for it. I usually recommend the weekend program instead.
First, a first time OWI (DUI) with a breath test result of less than .15 is typically a youthful indiscretion from which the average defendant will recover. Every potential employer can imagine themselves getting popped for OWI (DUI) and chances are good they already have been arrested for it.
However, in more serious cases and those involving dishonesty crimes, defendants hope to tamp down publicly available information about conviction to the best of their ability. This is the best way to do that so far and it is a tool available in my toolbox for certain eligible offenses and defendants for that reason. A blog is not legal advice. No attorney-client relationship is established by reading a blog or sending unsolicited information to a lawyer over the Internet.
Copyright David A. Cmelik Law PLC. All rights reserved.