Differences Between Criminal and Arrest Records

Nearly a quarter of all American adults have some sort of criminal record yet there’s increased scrutiny of these documents due to their availability online and resulting discrimination.

Arrest records should not be given the same weight as criminal records yet they are frequently confused and conflated. These records should not be used interchangeably to evaluate a person’s character or past behavior.

What are Criminal Records?

Background checks are performed more frequently than we might suspect, including by prospective landlords, college admissions officers, adoption agencies, professional licensing boards, and loan officers. College students can be denied student loans and other financial aid for relatively minor drug convictions, and many private colleges are selective about students with criminal records. Landlords and others may fear lawsuits for negligence if they accept a person with a criminal record.

In some categories of employment, up to 90 percent of employers use background checks to screen candidates (with the consent of the person applying). Both arrest and conviction records are likely to show up in such a records check, particularly if the incidents are less than seven years old. It’s possible for a candidate to be proactive and dull the impact of a search that turns up such information, including:

  • check your records before the prospective employer does;
  • correct any errors found in your record;
  • have a conversation with the hiring manager to explain the records or the circumstances;
  • if time permits, seek an expungement of your minor records or ask the court to remove non-conviction arrests and misdemeanors more than five years old, and
  • learn more about what your state allows in background checks for employment purposes.

Several cities, public entities, and nearly three dozen states have instituted limits on background checks for employment purposes, such as allowing a criminal record to be considered only after the individual advances to the late stages of candidacy and allowing a criminal record to be considered only if it’s relevant to the position being sought.

If a job applicant is denied an offer due to a criminal background check, the prospective employer must provide a detailed explanation and allow the individual an opportunity to provide a rebuttal, specifically any reason why the criminal record should not count against him. If the document used to deny the job offer was an arrest record and not a conviction, the applicant need only prove the lack of conviction. Other records that are off-limits in most states include records of diversion programs (alternative sentencing), juvenile records of any sort, expunged records, and those older than state law specified limits.

The application of background checks in hiring varies from state to state. Alaska offers few additional protections to the applicant other than the requirement that he or she be notified of denial for having a criminal record. Texas waives most protections for job applicants if the job pays more than $75,000 per year or if the position is in a sensitive industry.

What is an Arrest Records?

When police arrest a person for suspicion of criminal behavior, it’s just that: a suspicion. An arrest allows them to hold an individual for questioning about a crime. Some arrests take place at the scene of an incident and some are by the warrant, exercised after police determine they have sufficient evidence to detain a person of interest.

Arrest records are public but unfortunately arrest records often stay on file, sometimes for years, and are often confused with convictions. Arrests can be mistakes and do not always lead to convictions. There are many circumstances that can lead to an erroneous arrest, including:

  • being rounded up in a crowd at an event;
  • mistaken identity;
  • police evidence error;
  • witness error, and
  • lack of evidence.

What are Conviction Records?

A record of a conviction is the same as a criminal record or a rap sheet. It is a permanent document that memorializes the charges, evidence against an individual, the testimony of law enforcement and witnesses, as well as the judge or magistrate’s findings and decision. Criminal records can be for misdemeanors records (punishable by one year or less in jail) or felony records (punishable by one year or more in jail or prison).

Misdemeanors are issues like trespassing, an assault (if no prior record of assault), a first DUI, minor theft, or a traffic infraction. Felonies are more serious crimes, from theft over a certain dollar amount to arson, burglary, and murder.

The language used in court documents and criminal records can be confusing. A court clerk can explain what shows up in a criminal record and the process for expunging or sealing it.

Expungement of Records

Records may “expire” and be dropped from a background check after a specified period of time has elapsed, for instance, five years after a misdemeanor conviction and 15 years after

Many states allow those with minor criminal records to have them erased after a period of time. For instance, those with convictions for nonviolent offenses such as possession of a small amount of marijuana may petition the court for expungement or sealing of the record. This is usually available to those with minor criminal records, rarely for those who are habitual offenders or felons.

Public Records Online

In today’s connected world it can be difficult to avoid an erroneous criminal record: once an arrest or conviction shows up on a background check the information can be shared to many databases and may resurface even years after the record should have expired. Chasing down each potential source of bad information is difficult, but keeping a certified letter from a court clerk could solve the problem.