Gentlemen,
A few years ago, my younger son (then 19, now 21) was sitting in a parked car with a friend of his. My son was the passenger. They were parked (not driving).
Anyway, for some reason the local police stopped and looked at them and when they checked my son's friend had some weed on him (a tiny amount... maybe the diameter of a quarter coin). My son didn't have any on him and he was not "using" any.
This happened right on my street about 3 houses down from mine, so I walked over and listened.
The cops were very polite and they said they didn't even want to do anything about it, but the station (a supervisor I'm guessing?) said that they had to be arrested. So my son and his buddy both ended up in handcuffs and were driven to the local station. They released him about 1/2 hour later and they were both charged with possession of pot (even though HE possessed none at all - he was "guilty by association") and had to go to court.
At court, the judge gave my son an "ACOD" (adjournment in contemplation of dismissal). He had to take a piss test every month for 6 months (and of course pass it!).
Funny thing was the judge asked him if he had ever received an ACOD before. He replied "Sorry your honor, I don't even know what that is" and the judge smiled and said "good".
Anyway, he passed the piss tests and the charges were confirmed dropped, his record "expunged" and that was the end of it.
So (yeah I'm finally getting to the point) my son has NO criminal record and he was never jailed, fined or convicted of anything. He was, however, "arrested".
Now he's doing the paperwork to get his CHL and one of the questions on the form is "Have you ever been arrested?".
This is the exact question scanned from the sheet:
(click for larger)
Although the pot charge was dropped and he has no "criminal record", he WAS "arrested".
So I'm wondering (asking advice) what should he put on the form? I'm thinking that he should answer "yes" to the question since it says "even if [charge] dismissed and sealed", and in his CHL safety class, the instructor said that "an arrest does not necessarily disqualify someone from getting a CHL" (he just happened to mention this as part of his course... we never ASKED him about that).
So, what do you all think? Should he write yes or no?
Thanks.......
(edit to add): Good grief I forgot a major part of my question!!!
In New York Criminal Procedure Section 170.56 - Adjournment In Contemplation Of Dismissal In Cases Involving Marihuana, sections 3 and 4, it says:
Since my son met the criteria for the ACOD and in fact the charge was dismissed, I'm wondering about section 4. I'm not a lawyer, but it seems to me that it's basically saying "if you meet the requirements of the ACOD, then the arrest and prosecution is deemed to be null and therefore he is "restored" to the status which existed before he was arrested" (i.e. therefore he was not arrested).3. Upon or after dismissal of such charges against a defendant not
previously convicted of a crime, the court shall order that all official
records and papers, relating to the defendant's arrest and prosecution,
whether on file with the court, a police agency, or the New York state
division of criminal justice services, be sealed and, except as
otherwise provided in paragraph (d) of subdivision one of section 160.50
of this chapter, not made available to any person or public or private
agency; except, such records shall be made available under order of a
court for the purpose of determining whether, in subsequent proceedings,
such person qualifies under this section for a dismissal or adjournment
in contemplation of dismissal of the accusatory instrument.
4. Upon the granting of an order pursuant to subdivision three, 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.
Yes, or no? (Where is Blauhund when I need him?).
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