Written by Jayson Baxter
Criminal Records | August 16, 2022
Table of Contents
When a defendant appears before a judge they may be happy to learn the case has been dismissed but this leads to the question, “If Charges are dismissed do you have a criminal record?”
The bad news is dismissing a charge doesn’t always mean it completely goes away and sometimes it will still show up when someone runs a background check but in most cases, it can’t, or more accurately, shouldn’t be used against you.
When charges are dismissed what does it mean? When does that happen in the court process? Defendants in criminal matters can benefit from understanding how cases are dismissed and what happens next. It’s also important to understand the difference between dismissed and dropped charges.
Essentially, a dismissed case or charge means the court has ruled there is insufficient evidence to proceed but dropped charges differ.
Often individuals will use the phrases dismissed charges and dropped charges interchangeably, but they are actually two separate methods of not prosecuting a criminal offense. Whether or not the case can be refiled is the biggest difference between dropped vs dismissed.
Dropped charges refer to those that are removed from the docket by the district attorney usually before the court proceedings have begun. The defense can request charges be dropped when the case is called for a hearing and presents the reasons why.
Jeopardy, which means the defendant is at risk of going to jail or prison, does not attach to dropped charges because evidence has not been presented to a judge. Dropped charges can be reinstated if new evidence is discovered.
On the other hand, dismissed charges occur at some point during the hearing after evidence has been presented. The defense attorney usually files a motion to dismiss after the district attorney has presented his or her case to the judge. In the majority of dismissed charges, jeopardy has attached meaning that once dismissed they cannot be reinstated depending on when and how they are dismissed.
During the hearing process, the defense attorney can make a motion to dismiss based on a legal argument supporting the motion. Essentially, this means the defense attorney argues there is no reason to move forward with the case. The prosecution can make a counterargument that the charge should not be dismissed or can agree to dismiss the charge without prejudice.
It’s important to understand the difference between with and without prejudice. When the case is dismissed without prejudice it can be reinstated at a later date. Cases dismissed with prejudice are completely done regarding court proceedings and cannot be refilled.1
What happens once a charge is dismissed? Since court records are considered public records, the person charged needs to know what happens after charges are dismissed and how they can impact someone’s future.
With more companies and agencies using background checks to vet employees, knowing the role dismissed charges can play is vital. Between 70 and 100 million Americans have some kind of criminal record, but not all of those records are for actual convictions.2 These charges don’t just disappear from the files when dismissed, but if charges are dismissed do you have a criminal record?
Because charges are considered court records, even when they are dismissed they can and do appear in criminal background checks. While the record shows the dismissal, it’s not an automatic removal of the record. If charges are dismissed, is it still on your record? Potentially, it can still show up on a person’s record.
Because dismissed charges can show up on a background check, the person being screened needs to know what type of check is being conducted and may need to provide proof of case dismissal or an explanation to the entity requesting the screening.
Undergoing a background check can be stressful enough, but when the possibility of a dismissed charge is added to the mix, it can be even more stressful. There are several types of background checks that can show charges, even if they resulted in dismissal or non-conviction.
The table below outlines these checks and how dismissed charges factor in.
| Background Check Type | Brief Explanation of Check |
| Personal | Personal background checks are run by individuals wanting to see their own background info, that of a loved one, or a potential love interest. These are not commercial background checks. |
| Pre-Employment Screening | These are conducted at some point during the pre-employment process. Because they are considered “official” or “commercial” background checks, there are laws at the state and federal levels that regulate how they can be used. Running this type of check requires the consent of the search subject. |
| Continuous Screenings | Companies are not running what is referred to as continuous screenings, meaning they conduct background checks on already hired employees. Dismissed charges can appear on these as well. This check requires the subject’s consent (which is usually obtained on the date of employment). |
| Level One | This is typically a name, date of birth, and possibly social security number check. These are your most basic background screenings. |
| Level Two | This check usually includes fingerprinting and is more extensive than a Level One check. |
What impact, if any, does a dismissed charge have on someone? Can dismiss charges be used against a person? In short, the answer is no. Dismissed charges should not be used against a person who is trying to secure gainful employment or rent a home. If charges are dismissed do you have a criminal record? Regarding employment and rental applications, the answer is no.
There are a number of state and federal laws that protect individuals from being unfairly treated for having a dismissed criminal charge on a background check. Some states have even taken steps to immediately remove dismissed charges from the public record. The federal government prohibits the use of dismissed charges as well and enforces violations of statutes prohibiting using these charges.
The Federal Trade Commission and the Equal Employment Opportunity Commission oversee the enforcement of federal anti-discrimination laws and the Fair Credit Reporting Act (FCRA) which dictate how background checks can be conducted and permissible uses of the information obtained in the screening.
Dismissed charges are considered non-convictions; therefore, they cannot be used against an applicant for employment, licensure, or a rental agreement. Inquiries about criminal history cannot be made until a conditional offer of employment is made for federal positions as well, and even then a conviction may not be an automatic disqualifier for federal employment.3
When asking, “if charges are dropped do you have a criminal record” dropped charges have the potential to be reinstated in court, so these could show up on a background check; however, federal laws still prevent dropped charges from being used to deny employment or housing.
When someone feels they have been discriminated against based on dismissed charges, they can file a formal complaint with the EEOC to seek relief.
States must comply with federal guidelines regarding background checks and permissible use of information, but states can and do pass their own laws expanding on federal protections.
State laws not only prohibit the use of dismissed charges in making employment or leasing decisions, but some states have also taken steps to clear these matters entirely, some automatically following the dismissal. State laws ensure the answer is no to the question, “if charges are dismissed do you have a criminal record?”
For example, California, Illinois, Massachusetts, and Vermont are just a few states with “Ban the Box” laws that limit employment background checks, and in every state, there are prohibitions against using non-convictions as a determining factor in employment, licensure, or prospective tenant decisions.
Domestic violence directly affects over 10 million people annually in the United States, and it makes up 15 percent of all violent crimes.4 Each state has several criminal and civil statutes pertaining to domestic violence, but how do these cases affect a person’s record if they are dismissed?
Dismissing charges is at the discretion of the judge, or in some cases the prosecution if the district attorney (DA) decides not to pursue a matter, but can domestic violence charges be dismissed? Domestic violence charges can be dismissed by the prosecution if they decide not to pursue the matter, or the judge if there is insufficient evidence to proceed. In most cases, victims cannot request domestic criminal charges be dismissed, but civil matters are different.
A charge of domestic violence can impact a person’s ability to gain employment, find housing, purchase a firearm, or be around children or other family members. That is why, when these charges are dismissed, it’s important to take steps to remove them from the record if possible.
Domestic violence cases can include court action in both criminal and civil courts for the same incidences. Criminal domestic violence charges usually include matters such as assault on an intimate partner, stalking, harassment, or trespass on property maintained by an intimate partner.
When these cases are dismissed, depending on the state, they can either be automatically expunged or sealed, or a motion to expunge the record can be filed. This does not mean the entire matter goes away. A civil protective order can also be entered against the alleged offender in a separate court, usually a civil court.
A domestic violence protective order, sometimes referred to as a restraining order or order of protection, is issued in civil court and doesn’t carry the same burden of proof a criminal charge carries. Unlike criminal domestic violence charges where a victim cannot request dismissal, the victim can request a civil protective order be dismissed. If there is a hearing, and the judge feels there is sufficient evidence to enter a restraining order, one will be.
This means that even if a criminal charge is dismissed, there are sanctions that can be imposed on someone if they are subject to a civil domestic violence order. If the accompanying domestic violence criminal charge was dismissed or returned a non-conviction, the party does not necessarily have a criminal record, but it does mean the civil order can appear on a background check.
Dismissed doesn’t necessarily equate to gone or erased automatically in most states. However, all states do have some mechanism in its criminal codes to expunge, or erase or seal, records when cases are dismissed. Expunging a case helps by removing it from the public record, meaning it won’t show up on background checks.
Simply put, expungement means the court has ruled that records of a case (in this instance where charges are dismissed) shall be destroyed and removed from public view. In other words, it wipes the record clean of the dismissed charge as if it never happened.
Sometimes called “Clean Slate” laws, these give individuals a better chance at moving forward after a criminal charge.
Every state has some kind of law on the books regarding the expungement of records; however, only twenty currently have some provision to automatically seal or expunge records for dismissed cases.
These differ in the method of expungement, the time frame, and the type of offense. The table below outlines which states have a law that clears dismissed charges from the public criminal record.
| State | Brief Description |
| California | Automatically removes misdemeanors from the public records where the charge was dismissed. |
| Connecticut | Automatically removes dismissed charges 13 months after the dismissal from the public record. |
| Delaware | Automatically removed cases from the public record when dismissed in the subject’s favor. |
| Georgia | Seals cases not referred for prosecution and closed by law enforcement as follows: misdemeanors 2 years after the closing case, felonies 4 years, sex offenses 7 years. |
| Illinois | Automatically removes charges that were vacated (dismissed) from the public record. |
| Kentucky | Automatically removes charges dismissed with prejudice from the public record. |
| Michigan | Automatically removes dismissed charges for certain crimes from the public record. |
| Nebraska | Removes dismissed charges from the public record when the order of dismissal is entered into the system from public record. |
| New Jersey | Automatically removes dismissed charges from public record. |
| New York | Automatically removes charges dismissed in the accused favor from public record. |
| North Carolina | After Dec 1, 2021, charges dismissed without leave or dismissed by a judge are automatically removed from the public record. |
| North Dakota | Removal of cases from public records only applies to dismissals following deferred prosecutions. |
| Oklahoma | Removal of the case refers only to first-time drug offenses dismissed following a deferred prosecution. |
| Pennsylvania | Removal of all non-convictions, including dismissals, from public record immediately following the dismissal or acquittal. |
| South Carolina | Removal of cases dismissed in summary court unless the party was fingerprinted when an arrest is made. |
| South Dakota | Sealing of first-time misdemeanor or felony charges that are dismissed. |
| Tennessee | The judge must inquire if the defendant wants the record destroyed when the case is dismissed. |
| Texas | Refers only to Order of Non-Disclosure for deferred prosecutions. |
| Utah | Removal of cases from the record when dismissed with prejudice. |
| Virginia | Automatic removal refers only to deferred and later dismissed marijuana possession cases. |
Other states require individuals to file a motion to the court to expunge a record, and it is a good idea to utilize the services of an attorney when doing so. Charges are brought before courts daily, but not all result in convictions. When a case is dismissed, a person doesn’t have a criminal record, but the matter may show up again.
So, the answer to “if charges are dismissed do you have a criminal record” is no, but expunging the record is recommended.
Sometimes dismissals don’t automatically show up on a background check. When this happens, the subject of the check can obtain proof of the dismissal from the clerk of court in the jurisdiction the case was filed.
If the only matter on the criminal history was the dismissed charge, technically, the subject does not have a criminal record; however, they do have a history of involvement with law enforcement. Only criminal convictions can be used under certain circumstances to deny employment or a rental application.
If a misdemeanor is dismissed in a state with automatic expungement or sealing non-conviction cases, it should not appear on record. In other states, it will be on the record but will indicate it was dismissed. When a case is expunged, but still shows up on a background check, the subject will need to alert the clerk of court to make sure the record is corrected.
In short, no, dismissed charges do not count against someone per state and federal laws designed to give individuals a fair chance at employment and housing. In personal relationships, however, they may create a strain.
Expunged means the record has been erased or wiped clean as if it didn’t occur. Dismissed means the charge is not going to be tried in court, but it does not mean it is erased from the record automatically in most states.
1 Home Court & Hearings Difference between dismissed with or without prejudice. (n.d.). Illinois Legal Aid Online. Retrieved July 22, 2022, from <https://www.illinoislegalaid.org/legal-information/difference-between-dismissed-or-without-prejudice>
2 “Americans with Criminal Records,” The Sentencing Project. (n.d.). The Sentencing Project. Retrieved July 22, 2022, from <https://www.sentencingproject.org/wp-content/uploads/2015/11/Americans-with-Criminal-Records-Poverty-and-Opportunity-Profile.pdf>
3 Employer Background Checks and Your Rights | Consumer Advice. (n.d.). Federal Trade Commission. Retrieved July 22, 2022, from <https://consumer.ftc.gov/articles/employer-background-checks-your-rights>
4 National Statistics. (n.d.). ncadv. Retrieved July 22, 2022, from <https://ncadv.org/STATISTICS>
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