Monday, February 14, 2011

Frequently Asked Questions: Should I Expunge My Conviction If I Am A Licensed Professional Or Want To Apply For A State License? What Is Expungement? Can I Get A Felony Reduced To A Misdemeanor?

Here is the second in a series of posts on frequently asked questions regarding misdemeanor and state felony convictions, expungements of those convictions and how expungements can affect licensed professionals during California Board or Bureau proceedings. This post will also assist other professionals and persons for whom a state conviction would affect their employment opportunities.

Question 2: What is an expungement?

Answer 2:  In California, the law regarding expungements is governed by Penal Code Section 1203.4 and 1203.4a.  An expungement reopens your criminal case, dismisses and sets aside the conviction or plea (of guilty or no contest), and re-closes the case without a conviction. In effect, you are no longer a convicted person. However, the case record itself will still exist, and the expungement will appear on your record.  There are three types of expungements:

(1)  Penal Code 1203.4 allows the court to expunge cases in which probation was part of the sentence. For example, straight probation cases or those with probation and county jail. The court must grant these expungements if you are not on probation, have completed all terms of your probation (including restitution and fines) and do not have a current crimnal case.

(2) Penal Code 1203.4a  allows the court to exercise its discretion and expunge cases in which there was no probation. In these cases, it is important to submit a declaration with setting forth your rehabilitation, the reasons you want expungement, and other relevant information. We often represent clients in these type of expungements where the court has discretion to deny the expungement.

(3) Penal Code 17 allows the court to reduce certain felony conviction to a misdemeanor. The misdemeanor can then be dismissed or expunged.  If you received state prison as your sentence, you are not eligible for a reduction to a misdemeanor. You will need to file paperwork for a Certificate of Rehabilitation instead.

This will be addressed in a subsequent post but if you had a felony conviction it it is important to have the conviction reduced to a misdemeanor before it is expunged. In determining whether to enter into a plea agreement, having a "wobbler" felony which can later be reduced to a misdemeanor is often a key negotiating point.

An expungement does not seal or destroy a client's criminal record, but it allows the client to state to a private employer (not to government or state licensing agencies or to certain  publicly funded employers like the lottery) that he or she has not been convicted of a crime.  Expungement of a client's record helps increase the likelihood that the client will be able to obtain employment and shows increase his or her family's financial stability.

Question 3: I am going to apply for a license (law, medical, nursing, real estate, etc.) and I had a criminal conviction in my past.  Should I have it expunged before I begin  the application or license renewal process or will it make any difference?

Answer 3Yes. Have it expunged since the expungement can be used as mitigating evidence by the Board or Bureau. As noted in my prior post on this topic (Do I Need To Disclose Convictions That Have Benn Expunged In Professional License Or Government Applications?), the expungement does not relieve you of the requirement to report the expunged conviction but is useful in order to obtain a license or obtain a lesser amount of discipline.   

I recommend that everyone have their convictions expunged since it also allows you to answer "no" to the question of whether you have ever been convicted of a felony or misdemeanor in any job application. However, remember that many employers conduct background checks and the conviction will still show up in background checks along with the expungement.

Question 4: Once my conviction is expunged, can I answer "No" to questions about convictions on job applications?

Answer 4: Legally, you may answer "No" to these types of questions. Keep in mind, though, that background checks typically go back 10 years, and employers can see that you had a conviction dismissed.

I have had calls from frustrated job applicants realizing they were losing employment opportunities after the background checks. Thus, if you know it is a large company that will run a background check, you may decide that answering "No" could look dishonest. A better response for some employers may be "Yes in 2005, but case dismissed and expungement granted in 2009."You could also attach a letter of explanation to explain the circumstances and how you have turned your life around and what you learned from that experience.

If you are applying for a government job, a job that requires security clearance, or a job that requires a government-issued license, certificate or permit, the conviction will be discovered during the standard background check. You should disclose the conviction and expungement in these situations.

If you are applying for a government-issued license, certificate, or permit, you must disclose your conviction and expungement.

As I noted in a prior post, the California Boards and Bureaus have gotten a lot tougher over the past five years and failure to invest adequate time and effort into this process (including proper expunegment and reduction to a misdemeanor) can cost someone a lot of lost income due to delay or denial of licensing. Spending $1,000 to $5,000 in putting together a mitigation and expungement package and explanation can often save clients hundreds of thousands of dollars over a few years.  It is in investment that is often well spent. 

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.  Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments  should be directed to Tracy Green, an experienced California board attorney, California administrative attorney, and California licensing attorney with more than 20 years' experience at tgreen@greenassoc.com.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed professionals in California and throughout the country. Their website is: http://www.greenassoc.com/

Happy Valentine's Day

Sunday, February 13, 2011

Do I Need To Disclose Convictions That Have Been Expunged In Professional License Or Government Applications?

Here is a series of posts on frequently asked questions regarding misdemeanor and state felony convictions, expungements of those convictions and how expungements can affect licensed professionals during California Board or Bureau proceedings.

Question 1: I am going to apply for a license (law, medical, nursing, real estate, etc.) and I had a criminal conviction in my past but it was expunged.  Do I need to disclose it?

Answer to Question 1:  The short answer is "YES." The failure to disclose expunged convictions gets more applicants into trouble with Boards and Bureaus (and results in probably as many denials of licenses) than the disclosing of the conviction does since it allows the Board or Bureau to deny your application on the ground that you "made a false statement" on your application.  The hallmark of professionalism is honesty so if they see you any false statement, it is a huge problem and claiming you did not understand that you had to disclose the expunged conviction is not persuasive after the fact.

In fact, it is not only "expunged" convictions you will probably have to disclose but also other kinds of arrests that resulted in diversion or deferred entry of judgment.  It is necessary to read the application carefully and the definition of "conviction."

And long answer is that "Yes, you disclose but you want to disclose it in the best manner possible." A well written statement of explanation and mitigation package submitted to the Board or Bureau can make a huge difference in how your application is treated.

Remember, an expungement does not:
  • Remove the conviction from your criminal history. California and FBI criminal history records will still show the conviction and the subsequent dismissal. Thus, when the agency does a background check it will come up.
  • Allow you to omit the conviction from applications for government-issued licenses.
  • Prevent the conviction from being used to refuse or revoke a government license or permit, such as real estate license, teaching credential, security guard certificate, etc. 
  • Seal the court case file from public inspection. The court file remains public record.
I am often hired to help physicians, lawyers, nurses and other professionals submit written explanations and packages of prior convictions. It is often necessary where my clients speak English as a second language and also do not understand culturally how to present this type of information in the best light possible. You need to take full responsibility for your actions, be accurate and honest and at the same time explain how something like this will not ever happen again.

It is better if I am involved from the beginning but often I get hired after the application has been denied and we need to file an appeal. The old saw that "good beginnings make good endings" applies here and even educated clients need an objective person to know how to write for the Board or Bureau.

There is usually some aspect of shame, embarrassment or emotion involved (especially when the conviction is old or was unfair) that can cause the applicant to not take it as seriously as it should. Or it is assumed that because the conviction is over 10 years' old, it will not be used to deny a license or application.

The California Boards and Bureaus have gotten a lot tougher over the past five years and failure to invest adequate time and effort into this process can cost someone a lot of lost income due to delay or denial of licensing. Spending $1,000 to $5,000 in putting together a mitigation package and explanation can often save clients hundreds of thousands of dollars over a few years.  It is in investment that is often well spent. 

Posted by Tracy Green, Esq. Please email Ms. Green at tgreen@greenassoc.com or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.  Ms. Green's office at Green and Associates is located at 801 South Figueroa Street #1200, Los Angeles, CA 90017.

Any questions or comments  should be directed to Tracy Green, an experienced California board attorneyadministrative attorney, and California licensing attorney with more than 20 years' experience. 

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed professionals in California and throughout the country. Their website is: http://www.greenassoc.com/

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