Criminal Records and Background Checks

A Short Guide to The Criminal Justice Process 

Is an arrest a conviction? What does is mean to be adjudicated guilty or not guilty? Does non-deferred adjudication mean our company can deny employment? The key to understanding these and many of the questions regarding criminal records is to understand the process involving how one goes from citizen to criminal. Understanding the criminal justice process from arrest through conviction or exoneration really is not that difficult. It is, however, useful when trying to interpret the criminal record portion of an employment background check. 

Let’s use an example of Jeremy, an applicant for ACME Oven Mitts. Jeremy is excited to be applying for a job as a copywriter. He is fresh out of college and has a relatively clean record. He has a couple of parking tickets from college and was fired from his job at The Taco Hut for starting a food fight. His academic record is excellent, and he is a highly creative copywriter.  

Jeremy has been made a conditional offer of employment pending a background check at ACME and decides to celebrate with his friends before he starts in 2 weeks. At the end of the evening with friends, Jeremy, who normally would use a ride share to get home, feels good about driving himself that night. Unfortunately, the police officer who saw Jeremy weaving felt differently. So, what happened to Jeremy between the time the officer stopped him to when he was due to start his job at ACME? Would ACME find out?  

Here is a simple timeline with a description of the general process involved from arrest to court that Jeremy or any applicant would experience in a brush with the law. This process can differ depending on if it is a felony or misdemeanor, but for our story, let’s assume it is a misdemeanor case. Just to be clear, felonies are more serious crimes that can involve incarceration in prison and misdemeanors are less serious and may or may not include jail time.  

The Criminal Justice Process 


  1. The police officer noticed Jeremy weaving left of center and had reasonable suspicion to affect a traffic stop.  
  1. Jeremy was noticeably slurring his words and smelled of alcohol. He also fails a field sobriety test. The officer now has probable cause to arrest Jeremy and take him into custody. Jeremy’s car is towed, and Jeremy is taken to the local police station.  
  1. After failing the breathalyzer test Jeremy is charged with OVI or DUI depending on the circumstances and amount of alcohol in his system.  
  1. Jeremy’s dad is called and pays Jeremy’s bail. They are given a court date for that Monday. 


  1. The arraignment is where a defendant will enter a plea. There are three options for the defendant may enter. 
  • No Contest – This means the defendant neither admits or denies the charges and leaves it up to the court to decide. The court usually will find the defendant guilty and sentence the defendant at that time or refer them to probation. 
  • Guilty – The defendant denies the charges. The court will then either immediately go to sentencing or refer the defendant to a pre-sentencing investigation and schedule a date for sentencing. The bond or bail will be held, and the defendant can be released or can be required to remain incarcerated until sentencing. 
  • Not Guilty – The defendant, in this case Jeremy, pleads not guilty. The court sets a date for trial. The defendant can remain free until trial and the bail that Jeremy’s dad paid at the police station will be held until the case is complete. If the court thought Jeremy was a risk of some type, they could also require him to remain in jail. 


1.  There can be several pre-trail conferences where the defense can challenge evidence and file motions to have charges dismissed. The prosecution can also negotiate plea bargains and the two sides negotiate how the case shall proceed or if there needs to be a trial. 

2.  For Jeremy, the prosecutor offers a plea bargain for reckless operation of a motor vehicle with alcohol specs. This means that while Jeremy will not have a blemish on his record of a OVI or DUI, the record will still indicate alcohol was involved. Jeremy chooses to take the plea bargain. As a condition of this plea bargain, he is required to admit to the facts of the case and accept sentencing. 


  1. At this stage, the defendant will appear in court and enter a plea. The court will have been informed of the plea agreement and ask the defendant if they understand the consequences of the agreement. Sentencing will be based on the recommendations of the prosecutor, the defendant’s previous record and most likely a probation investigation report.  
  1. Based on his lack of any serious record, Jeremy is offered a first offender’s diversionary program. Some states call this deferred adjudication. Deferred adjudication simply means the conviction of the offense will be set aside if the defendant completes certain requirements as recommended by the prosecutor and probation. In Jeremy’s case, it’s 6 months supervised probation, community service and alcohol awareness classes. 

The outcome of this case is that Jeremy started his job at ACME Oven Mitts while on supervised probation. He completed the terms of the probation and his case was dismissed, therefore there was no conviction on record. Jeremy chose to disclose this during the background screening process and H.R. allowed him to still be hired. While the FCRA does not specifically prohibit reporting non-convictions unless they are 7 years or older, many states and cities do have specific prohibitions against using non-convictions to make hiring decisions. Be sure to know your state and local laws regarding this. 

Jeremy’s case could have also been far more complex with a trial and subsequent conviction or an acquittal, which would be a finding of not guilty by the court or a jury. The prosecutor could also have chosen to not pursue the case. In some courts, the record would show as Nolle which is Latin for “nolle prosequi” which means “unwilling to prosecute.” There are many more scenarios we could have discussed with different types of charges and mitigating circumstances. We attempted to give you a quick and easy understanding of the basics here. 

Therefore, it is vitally important to understand the language of the criminal justice process when using criminal background checks to evaluate applicants. There are about 10,000 lower or misdemeanor courts and approximately 3,500 felony courts in the U.S. Having an expert from Nationwide Screening Services assist in in understanding these wide-ranging and sometimes complex issues is essential to a successful employment screening program.