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Setting aside a conviction and answering the "prior conviction" question

4/26/2013

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If you are unfortunate enough to have a criminal conviction in Arizona, you should seek to set that conviction aside as soon as you possibly can.  While this will not "expunge" the conviction from your record (which will, thanks to computer storage capacity, exist practically forever), setting aside the conviction will improve your record.

Setting aside a conviction results in the charges being "dismissed," which indicates that the judge has reviewed your case and determined that setting aside the conviction is appropriate.  Please note that this is not necessarily the same thing as restoring your civil liberties, which often requires a separate application -- though by its terms, a set-aside results in the person being "released from all penalties and disabilities resulting from the conviction," with a few exceptions.  Still, it is the better practice to apply for both.  (Doing so will be the subject of a future post.)

If the judge grants your application, this does not mean that the conviction disappears.  As noted above, the case record can still appear if someone searches for it, and some court records show up on Google searches.  Thus, if you apply for a job after having a conviction set aside, and the application asks if you have ever been convicted of a criminal offense, the best answer is something like, "Yes, BUT the conviction was set aside."  DO NOT claim that you have not ever been convicted -- such dishonesty will likely cost you the job, and if you are applying for a government job, may result in further prosecution.

The statute governing set-asides in Arizona is A.R.S. section 13-907.
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The federal clearance background investigation

4/19/2013

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For those given the opportunity to work in a position that requires a federal security clearance, the background investigation is key.  It begins with completion of the Questionnaire for National Security Positions (Standard Form 86).  This is an extensive and in-depth survey of the applicant's personal history, and requires detailed information about the applicant's previous residences, work history, contacts, and other information.

It is, of course, essential to be brutally honest in filling out the SF86.  The information presented in the SF86 will be given to experienced investigators, and the investigation process will be managed by an even more-experienced investigator.  Any false information discovered on the SF86 will almost surely result in denial of a clearance, and possibly even criminal prosecution.

Some individuals think that they can guarantee approval by listing only information that puts them in a good light, and overlooking or omitting derogatory information.  While this is common practice (and perhaps generally accepted) on a resume, do not do this on the SF86.  As noted above, those investigating your background for a federal security clearance really know how to conduct an investigation.  This may include FBI agents, military investigators (from the Air Force Office of Special Investigations, Army Criminal Investigation Command, Defense Security Service, Naval Criminal Investigative Service, or others), contract investigators, or others with extensive investigation experience.

These people will talk to everybody they can find about you.  This includes not only the references that you list (and it is important to list references who will say the best things about you), but also the neighbors, former employers, classmates, etc., that you haven't listed.  They might even ask your references for references, and then talk to those people about you.  Thus, it is important to make sure that everyone who knows you feels that you are trustworthy -- if you know someone who will say that you're not, be prepared to explain it to the investigator during your personal interview.

The ultimate point of the background investigation is to determine whether or not you can be trusted with national security information.  This is an extremely important task, and those fulfilling it take it very seriously.  Look back at your history and ask yourself, "Based on this, would I trust this person with codes to nuclear weapons?"  If your answer is anything other than, "Certainly!", then you should improve your history.  You can't hide your past, but you can put a better face on it.
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    Author

    Chris Wencker is an attorney in Phoenix who helps people with security clearances, background checks, restoration of rights, and criminal history issues.  He also helps licensed professionals (such as veterinarians, nurses, and others whose work depends on a government-granted license) maintain and improve their personal and professional history.  Chris spent seven years as an intelligence collector in the Air Force, which gave him an insider's perspective on security clearance issues.

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