Increased Importance (or Impotence) of Criminal Expungement
- On September 28, 2014, Governor Brown signed Assembly Bill 2396
, which provides that an individual with an expunged conviction cannot be denied a license solely because of the expunged conviction
, notwithstanding any other law in the Business and Professions Code. An expungement in California
is a court order issued after probation is complete, or after more than one year after a conviction for which no probation was ordered, dismissing the conviction in a limited fashion. Expungement is granted upon a motion after successful completion of probation.
"What this means," explained Steven L. Simas
, owner of Simas & Associates, Ltd., "is that any licensing agency under the Department of Consumer Affairs (DCA) cannot merely plead a conviction in order to obtain license discipline. In the past, DCA attorneys or Deputy Attorney Generals (DAGs) would merely allege the conviction in the Accusation and that was sufficient notice and evidence for license discipline. With the passing of this law, the State decided to make it more of a contest."
By "more of a contest," Mr. Simas is addressing that the operative word of the change in law is "solely
." Because of the word, "solely," some of the licensing agencies are taking the aggressive stance that the conviction can still be used, so long as the underlying actions by the licensee that led to the conviction are also pleaded and proven at hearing. And because almost all licensees are required to self-report convictions or even expungements, the licensing agency will know the facts and circumstances in the criminal matter and use that as their blue print to seek discipline for unprofessional conduct.
"What makes most disappointing is the standard of proof is different," continued Simas. "Criminal matters are beyond a reasonable doubt, whereas most licensing matters standard is a less robust, clear and convincing. So, the licensee may have been convicted or pleaded guilty / no contest to a lesser charge in the criminal matter. But the underlying conduct will then get pleaded in the Accusation. And because of the lower threshold, the licensee may receive a far more severe form of license discipline because a finding of abhorrent misconduct will be more likely."
Presently, however, it does not appear that some of the licensing agencies had even noticed a change.
"No change in pleading, thus far," explained Mr. Simas. "It could be because the agencies do not think that the standards go into effect until the application or Accusation is filed after January 1, 2015. Furthermore, this change in rule - good or bad - does not affect non-DCA licensing agencies like the Department of Insurance or Department of Social Services."