The Use Of Expunged Criminal Convictions To Deny License Applications

I get a lot of phone calls and emails from individuals who are distraught to find out that after years of studies, they are denied a professional license due to past criminal convictions. Often times, the past convictions occurred years ago. Years before the individual even enrolled in the nursing/pharmacy/dental/medical program.

Governor Brown signed Assembly Bill 2396 (AB 2396) on September 28, 2014. AB 2396 states that an individual with an expunged conviction under Penal Code Section 1203.4 cannot be denied a license solely because of the expunged conviction. This new law became effective on January 1, 2015.

There are other legal ways for most agencies to use the underlying conduct, which resulted in arrest and conviction, deny an individual a professional license.

One example would be the category of applicants with prior drunk driving (DUI/DWI) convictions or convictions which involves alcohol or drugs. Such convictions constitute the dangerous use of alcohol or drugs, an independent ground for denial of a license regardless of conviction. AB 2396 only applies if the sole ground for denying an applicant is the expunged conviction. Most agencies can come up with another theory for denial and the underlying facts can still be used.

My experience is that licensing agencies will continues to deny an application for licensure if the applicant has any convictions involving alcohol or drugs. The agencies will look at other factors as well such as the total number of convictions and how remote in time are the convictions. Whether the convictions were misdemeanors or felonies are also significant.

Expungements under Penal Code sec. 1203.4 is helpful to show rehabilitation. There are other beneficial reasons to seek an expungement. Just relying on an expungement, however, as evidence of rehabilitation is not enough. The applicant must prove that he/she is sufficiently rehabilitated and that the public will not be harmed should the agency grant the individual’s application for licensure.

These laws are complicated. There are also many circumstances where the agency may offer the individual a license, but on probation, and the individual will need to decide if they should further appeal the denial so that the can obtain a license without probation and or restrictions. If you are applying for a license and have convictions in your background, contact an experienced licensing attorney to better understand your options.