Over the years, many a lawyer, including me, has advised a client that a suspended imposition of sentence, an “SIS,” will keep a criminal offense “off your record.”
And while this advice is, in a sense, true, this simple statement does not explain all that should be understood, and an “SIS” is not always and necessarily the panacea of good fortune it has been expressed to be.
First, what is an “SIS.”?
How I explain it: There are three things required for a “conviction” – for an offense that ends up on your public record.
The first is a charge. By the time a client is in my office, they usually have already received that.
The second is a plea of guilty to the charge, or a finding of guilty by the court. When a client comes to see a lawyer, this second matter typically has not yet occurred, as a person charged with an offense is presumed to be not guilty until and unless they may plead guilty, or be found guilty from the evidence.
The third requirement for a “conviction” which goes on a person’s public record is the imposition of a sentence, whether that sentence is a small fine, or 30 years in prison.
Hence, with a suspended imposition of sentence, typically the defendant agrees to plead guilty, and give up the second prong of a conviction, and the prosecution agrees to a suspended imposition of sentence, an “SIS”, where the third prong - the imposition of a sentence - does not occur.
Instead of imposing a sentence, the court typically places the defendant on probation, which can be supervised or unsupervised. And if the defendant is determined to violate the terms during the period of probation, then they can be sentenced at any time, after a hearing, and convicted.
Indeed, in many cases, an SIS is a good result, particularly where the evidence of guilt is strong, and the defendant may face significant fines or incarceration.
However, to suggest to a client that an SIS means the matter has disappeared for all times and all purposes is not correct.
For one thing, an SIS is still a guilty plea, although not a conviction.
And while this may not go on an individual’s public record, it does get recorded on their law enforcement record, which is accessible to government authority, such as police authorities, prosecutors, military, and a whole host of other government related agencies, but not the public at large or private parties.
Over the years, two trends have emerged.
One is that the rules making it unlawful for parties with access to law enforcement records to disclose such private information to unauthorized parties have been more strictly scrutinized. What this means is that your buddy the cop, the prosecutor, or other government official who may have access to law enforcement records can get into some fairly serious hot water for disclosing that information in violation of strict prohibitions that are in place on such disclosures.
Another trend is that government agencies with access to law enforcement records are, more and more, accessing them as part of their routine course of business.
For example, an SIS on a first time DWI may not be a public record on someone’s driving record. However, the prosecutor handling the second or third DWI can routinely find the SIS on the first and use it to enhance subsequent offenses. Furthermore, while the court case might be resolved on a first offense with an SIS, and probation with multiple terms and conditions, the suspension of the driver’s license does go on their public record for all to see.
Likewise, if an individual has an SIS on their law enforcement record, even from years and years ago in their youth, it may not appear on their public record when a private agency does a background check, but it will show up if they are screened by a government agency when they may be seeking to enter the military, or seeking a government license or certification to be a teacher, a lawyer, a cop, a Realtor, a mortgage broker or even a school bus driver.
Another trend is that screening questions on job, loan and related applications oftentimes ask individuals to disclose not only convictions, but pleas or findings of guilty, which would include an SIS.
So again, sometimes the evidence of guilt is such that a plea offer of an SIS is a good one that needs to be accepted. It is technically not a conviction and is better than possible incarceration.
However, in this day and age, it is, in my opinion, a disservice to a client to express to them that an SIS will “keep it off their record,” without a more complete explanation of just what that means, and what it doesn’t mean.
Ken Garten is a Blue Springs attorney. Email him at firstname.lastname@example.org