If a Case is Dismissed by ACD, Can I Say I was Never Arrested?

Can You Say You Have Never Been Arrested After Getting an Adjournment in Contemplation of Dismissal or ACD?

I recently ran across a New York City Criminal lawyer’s website in which the web page devoted to the “approach” of the law firm to certain types of cases included seeking Adjournment in Contemplation of Dismissal resolutions in cases. Part of the benefit of this approach, according to the text of the page, was that once the case is dismissed according to the rules of the ACD procedure, it would “then permit you to state that you were never even arrested.”

You hear this business about being “able” to say you weren’t arrested after an ACD dismissal quite often, actually, and it appeals to people because it sounds great.  It sounds like a kind of tricky lawyer sort of technicality which is what people expect from lawyers. And yes, I have seen cases where this concept is floated and even approved of by New York State Courts in particular circumstances.

But I am here to tell you that while I understand and appreciate clever legal gamesmanship as much as the next lawyer, I personally believe that making the blanket statement for a universal truth of being "permitted to state that you were never even arrested" is reckless advice to leave unqualified on the web for people to seize upon. At worst, it is downright wrong and such terrible analysis that acting upon it in all circumstances without qualification could lead to your arrest, or if you are not a citizen, deported or denied citizenship.  At best it might be considered "mostly true" and perhaps unlikely to create terrible problems.

This business of being permitted to say that you have never been arrested, when reality is that you have been arrested, is grounded in New York’s own description of the ACD.   According to the ACD statute itself (CPL 170.55(8)), "Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution."

So the argument goes like this: If 1) the arrest and prosecution are "deemed a nullity" and 2) I am restored to the status I occupied before arrest and prosecution, then before my arrest and prosecution, I was never arrested.  Therefore, I am allowed by law to say that I was never arrested.  Pretty cool, right?  This is what being a lawyer is all about - knowing stuff like this.

But also part of being a lawyer is being able to understand a principle in the appropriate context and to be aware that this principle may not always apply in every context.  This, is actually the more subtle part and why lawyers get the big bucks - to consider problems that are more than just what are in front of your face, problems that are around corners or coming from unexpected places.

So let us examine this problem a little more closely, and see whether or not there may be some unexpected difficulties with taking New York State's own ideas about what an ACD means and applying them in every possible circumstance.

First we need to remember reality. You were in fact arrested. You were fingerprinted, you were photographed, and you were sent to see a Judge in Criminal Court where there was a prosecutor who was prosecuting you. This happened. Unless you subscribe to some sort of non standard philosophy of what constitutes reality, you were arrested. The truth is that you were arrested. That isn’t fake news. Nothing that happens after the arrest, whether it is an apology from the DA, DNA exoneration, acquittal after jury trial - can undo the basic reality that you were arrested.

So before we venture into what "the law may or may not allow you to say", an honest, truthful response to the question, “Have you ever been arrested?” is “Yes”.

Starting from this basic notion, we can move on to the idea that it is possible for the law to directly address this and absolve you of the legal (and perhaps also moral) responsibility to speak truthfully.  This is precisely the argument that some lawyers will make.  It isn't an unreasonable argument.  I get it.  I also get how attractive it is to people who have been arrested.  It would be nice to be able to step back in time and make it go away, if not in reality, then perhaps by way of a legal proclamation.

The difficulty, however, is that unlike reality, legal proclamations depend on people giving credit to the law in question, and not finding some reason to conclude that New York's ideas about the effect of its ACD don't apply in some particular case or situation.

If you happen to be visiting a jurisdiction that does not recognize New York's ideas about restoring a person to his position prior to arrest, for example, your argument grounded in New York's ideas isn't going to work.  And if you are unconcerned about this because you don't know why you would care about some far away "other jurisdiction" you should remember that Federal laws and our Federal Government is another jurisdiction.  We are all subject to two significant legal jurisdictions in the United States: state and federal.  And the Federal government is not required, as a general rule, to be ruled by New York's assessment of whether or not an ACD restores anything to anybody.

Our Federal Courts have quite clearly already determined that an ACD is what the Federal Courts would classify as a "diversionary program" in the context of background checks for those in the financial industry regulated by FINRA guidelines.  This determination by the Federal Government, in spite of what New York wants to believe about its ACD procedure, has the effect of making it such that people with ACDs might as well have pleaded guilty to the underlying offense.  In this context, the Federal Government chooses not only to acknowledge the ARREST, but to treat the person who got an ACD as if he had been convicted of the underlying charge.

Therefore, in filling out applications for FINRA background checks to be certified eligible to work in FDIC regulated business, you have to wonder whether it would be OK for a person in this circumstance to say "No, I have never been arrested." if asked in a context where an ACD is considered the equivalent of a conviction.

Non-citizens also must interact with the Federal Government in making various applications to the Department of Homeland Security, whether for Green Cards, Visas, or Citizenship applications.  Non-citizens can expect to be asked by the Federal Government whether or not they have been arrested.  I seriously doubt that Immigration officials will be particularly impressed by a "NO I have never been arrested" answer from someone who has been arrested but got an ACD.  In fact, under those circumstances, a non-citizen would risk being determined to have lied to Immigration which could lead to arrest itself, or denial of whatever relief is being sought, or both.  When Immigration asks whether you have ever been arrested, you can be sure that Immigration means it in the sense of reality, not in the sense of some argument made based on language in the ACD statute.  Especially sad here is that in most cases, simply acknowledging the arrest and the ACD to Immigration will not in most situations actually create any problems.  Therefore, someone mistakenly relying on the clever legal argument about ACDs "restoring you to your position prior to arrest" could pointlessly jeopardize an application that might otherwise have been accepted without trouble.

It is easy to imagine other circumstances where the people doing the asking will not be terribly impressed by a "NO" answer to the arrest question for someone who accepted an ACD.  How about people who are applying for law enforcement positions, even in New York State?  Do you honestly think that if you were arrested and got an ACD that when you applied to be a police officer for the NYPD, that you are allowed to hide this from the NYPD?  And how do you think the NYPD would feel about it if you did hide this and fail to answer the direct question put to you truly honestly?  Do you think they will be happy to hear your clever legal argument then, or do you think they will move on to the next candidate who told them the truth first time out of the box?

Other circumstances where the people doing the asking will likely be less than overwhelmed by your "NO" answer to the arrest question when you got an ACD include applications for security clearances, federal law enforcement, applications to the bar to become a lawyer, teacher applications, and applications for certain positions in the medical professions.

You should know that in the rare circumstance when people are actually allowed to ask you the arrest question, they are never going to rely on you for the answer.  If you are applying to be a Secret Service officer to guard the President, for example, they will likely ask you whether you have ever been arrested.  If you say "NO" that doesn't mean they aren't going to check - and they have the means to get the answer - the real answer, that is, regardless of the ACD.

The good news is that the number of opportunities where you will be asked the “have you been arrested” question is much smaller than you likely imagine. In most circumstances, it is an illegal question actually, in New York in connection with employment. Even in Court, as a witness, it is a rare Judge indeed who will allow the “arrest” question, because an arrest is thought generally to be evidence of nothing, merely an accusation. The relevant question may be about a conviction, which is considered relevant on the issue of credibility, or about specific “bad acts” themselves, but only in the rarest of circumstances will a Judge permit a witness to be asked the arrest question.

Given that in these sorts of circumstances, the people asking the question will ultimately know the truthful answer, it seems wiser to me to speak the actual truth, as opposed to a lie that you believe to be legally justified. Know that simply being arrested is evidence of nothing really, and should never, in itself be used as justification for taking any action.  Typically, an ACD result is so favorable that you will have nothing to worry about anyway.  (Unless you took an ACD on a theft related offense and you are seeking FINRA registration.)

To advertise advice suggesting that people are “permitted” to say they have not been arrested, without fully putting that argument in perspective seems dangerous to me. This is especially problematic when the advice is something people want to hear and want to believe, and so will be likely to ensnare people into adopting the advice without thinking it through. 

Young lawyers are wonderfully enthusiastic.  They are fond of going on about cases as if they are still in law school debating hypotheticals with their professors.  "You can argue..." they will say.  In actual practice in the real world, however, you learn, or should learn anyway, that there is a big difference between having an argument for a position and having a good argument for a position that people will care about.

Therefore, you may want to think twice before assuming that our law permits you to say you have never been arrested when in actual fact, you have been arrested. As nice as it would be to believe otherwise, depending on the circumstances, you could be exposing yourself to consequences you might never have expected.  This is all the more reason to obtain the advice of counsel in any criminal case, even if it seems "minor" and you think you will "just get an ACD".  You want to make sure that a seemingly small decision now does not come back to haunt you in ways you never expected it might years down the road.

Don Murray is 27 year veteran New York City Criminal Lawyer, and founding partner of Shalley and Murray.  He has provided testimony in an international extradition matter as an expert in New York Criminal law, he has written a chapter for a multi-volume series of books for criminal defense lawyers, and he has consulted on various television and movie projects involving New York Criminal law.  He can be reached for consultation at 718-268-2171