Can I answer no to these questions on my job or school application?

You may encounter questions like these on a school or job application:

Have you ever been convicted of a crime, plead nolo contendre , or participated in a pretrial diversion?

or

Are you currently charged with, or have been found guilty of, any violation of a federal, state, or municipal law, regulation or ordinance other than minor traffic violations, including offenses for which any type of first offender status have been granted?

Obviously you must answer yes if you were convicted of a crime. But what about if you entered pretrial diversion or pleaded guilty under the First Offender Act and now your record has been restricted (commonly referred to as expunged)?

How you should answer requires carefully reading the question they ask, and your tolerance for risk. If the question does not specifically mention pretrial diversion or First Offender, then it's safe to leave it off. So you would answer "no" to the first question if you pleaded First Offender, but "yes" if you entered pretrial diversion; the opposite for the second question.

But what if you really need the job? It's true that once your record is restricted, the charge will no longer appear on your criminal history that is maintained by the Georgia Bureau of Investigation. But commercial background check companies typically maintain this data for years, and it's always available at the courthouse. You might be okay answering "no" if your employer only does a background check through GBI; but if he uses a commercial service then you could be found out.

A smart middle ground would be to answer "yes," but also submit court documents showing the charge was diverted or restricted on your record and a short explanation of what happened. Obviously, you would emphasize how the charges were a misunderstanding, or that they were so minor that the prosecutor permitted you to enter diversion or the judge permitted you to use your first offender plea.

For pretrial diversions, you may also want to include a letter from your lawyer. I've written letters like this for my clients. I explain that my client is innocent but because pretrial diversion results in an automatic dismissal, I advised my client to "take the deal" and protect his record.