It can be ironic—and more than a little frustrating—how the past can come back to haunt you. You've worked exceptionally hard to qualify as a licensed physician, nurse, accountant, financial advisor, counselor, or another type of licensed professional. You've dedicated years of your life and invested lots of money into your education. But that criminal record from your past continues to wreak havoc with your professional license—sometimes even after an expungement. What can you do?
See if you relate to any of the following scenarios:
Scenario 1: You've just finished your USMLE exams, and you're preparing to do your residency for the first time as a licensed physician. But you receive word that the licensing board has denied your application due to a disturbing criminal conviction that happened five years ago. It's an isolated event from your past that has never been repeated, yet it stops you from moving ahead with your career.
Scenario 2: You've been a practicing nurse for years, and you relocate to another state and attempt to be relicensed—only to have them decline your application. As it turns out, there's a DUI on your record that happened so long ago you forgot to mention it on your application—yet it turned up in your background check. (You reported it to the licensing board in your previous state when it happened, and they gave you a pass—which also helped you forget to mention it now.)
Scenario 3: You were arrested and convicted on drug charges several years ago, but since it was a first offense, you entered a diversionary program offered by your state that caused your record to be expunged when the program was completed. It was your only such offense. As a result, you said on your licensing application that you had never been convicted of a crime (as is your legal right to say). Still, somehow, the licensing board found it on a background check, and now they are giving you grief about it because you didn't report it.
These are just a few examples of how criminal convictions from the past can complicate matters with your professional license and even threaten your career. What steps can you take to minimize this damage? Is expungement an option for you? And if so—is it worth it?
As an experienced professional license defense attorney in New Jersey and New York, Joseph D. Lento has successfully helped many licensed professionals deal with difficult licensing snags, including prior criminal convictions. Let's take a closer look at the question of expungement, how expunging your criminal record may or may not resolve your licensing issues, and whether it's a good option for you.
What is expungement?
The American Bar Association offers a good definition for “expungement”:
“To ‘expunge' is to ‘erase or remove completely.' In law, ‘expungement' is the process by which a record of criminal conviction is destroyed or sealed from state or federal records. An expungement order directs the court to treat the criminal conviction as if it had never occurred, essentially removing it from a defendant's criminal record as well as, ideally, the public record.”
Different states have different processes and conditions for expungement, but the end result is the same, at least in theory: to remove a criminal arrest and/or conviction from public view. By law, when your record has been expunged, you are legally allowed to act as though the conviction never took place—including stating on applications that you were never arrested or convicted of a crime.
Does an expungement mean all records of the arrest and/or conviction disappear?
Usually not. Every state has its own methods of record-keeping, and an expungement order comes with stipulations about how those records are to be handled. Your conviction will probably still remain somewhere in court records, for example, especially in states that apply a “three-strike” rule (an expunged offense may still count as a “strike”). Additionally, it's important to note that expungement is not “forgiveness” like a pardon. The goal of expungement is basically to “scrub” your record so the public can't see the conviction. The bottom line is that expungement should erase your conviction from public records and background checks, but some agencies (including licensing boards) may still be able to see it, depending on how records are handled in your state.
What's the difference between expunging and sealing a criminal record?
Different states address expungement in different ways. For example, New Jersey practices a true expungement in that they “destroy” the notation of a criminal conviction, striking it from the record. New York, on the other hand, typically seals criminal records instead of expunging them. So what's the difference?
From a legal standpoint, sealing a criminal record doesn't strike it from the record—it just shields it from public view. Expungement basically removes the record itself. Also, sealed records may be unsealed at some point, while expungement is effectively permanent. That said, both expungement and sealing have the same effect: to hide the conviction from public view.
When applying for a professional license, do I have to disclose to the state licensing board that I have a criminal conviction if it has been expunged from my record?
Once your arrest or conviction has been expunged, you have the legal right not to disclose it to anyone—including the state licensing board on a license application. However, depending on what information is available to your licensing board, they may still be able to see a prior conviction that has been expunged, and the discrepancy between your background check and your application may cause them to ask questions. In some cases, it might be better to disclose the conviction to the licensing board with the added information that the conviction has been expunged. When in doubt, an experienced professional license defense attorney can give you better advice on what information the licensing board can see and whether you should disclose an expunged conviction.
Can the state licensing board deny, suspend, or revoke my license over a conviction that has been expunged from my record?
Legally, no. The state licensing board should not take disciplinary action on any arrest or conviction that has been expunged from your record—even if they can see it, and/or even if you declined to disclose it (which is your legal right). If you have been penalized for an expunged conviction in any way, or if your application for a license has been denied over it, talk to an experienced professional license defense attorney.
What types of crimes may be expunged from my record?
Every state has its own laws and provisions for expungements, typically involving a complex set of criteria as to which types of crimes can be expunged, who is eligible for expungement, and under what conditions. In most states, serious or violent felony offenses like murder, rape, or kidnapping are never eligible for expungement. However, lesser offenses (especially misdemeanors) may be eligible for expungement once the accepted amount of time has passed. Depending on your state, some examples of crimes that might eventually be eligible include (but are not limited to):
Cannabis was just legalized in my state. Can I get my prior marijuana-related conviction expunged?
It's quite possible. Many states that have legalized or decriminalized marijuana have also made provision for the expungement of convictions under the previous law, even to the point of releasing some people from jail. If you have a marijuana-related conviction in a state that has legalized cannabis, check with your attorney to see if you're eligible to have the conviction expunged.
Can my DUI conviction be expunged?
It depends on the laws of the state in which you live. Some states may allow a DUI to expunged after a certain amount of time, and in some states, they may fall off automatically. In other states, they aren't eligible for expungement. In New Jersey, for example, DWI/DUI offenses are traffic violations rather than criminal offenses, so they are not eligible for expungement. However, they will drop off automatically after 10 years.
What are the eligibility criteria for having something expunged from my record?
Each state has specific criteria in place for determining whether a certain offense is eligible to be expunged. These may include:
- The type of crime committed (e.g., misdemeanor, felony, indictable offense, disorderly persons offense, etc.).
- The time elapsed since the conviction or the completion of your sentence. (For example, a misdemeanor might be eligible for expungement five years after conviction, or a felony might be eligible 6-7 years after your sentence was served.
- The number of prior offenses you have—or the number of offenses that have been expunged.
- Whether it is in the “public interest” to expunge the crime in question.
- Whether the charge is eligible for expungement under a diversionary program. (For example, New Jersey offers a variety of programs that allow certain first-time offenders to apply for expungement six months after the diversionary program has been completed.
Is it worth it to pursue the expungement of my record if the state licensing board can still see it—or if I'm going to disclose it anyway?
In many cases, yes. The reason is that even if the state licensing board sees it or knows about it, they cannot take disciplinary action against a conviction that has been expunged. If you do not seek expungement when eligible, the licensing board still may pursue disciplinary action against you at their discretion. Those actions may include any/all of the following, depending on the severity of the offense:
- Denying your license application or renewal. The board may decline to issue you a professional license on account of the conviction.
- Revoking your license. The board may permanently cancel your license, especially over egregious convictions that may not have been reported.
- Suspending your license. The board may prohibit you from practicing for a specified or indefinite period of time.
- Restricting your license. The board may allow you to continue practicing but with certain restrictions in place.
- Fines. The board may impose a monetary fine.
- Mandatory conditions. The board may require you to fulfill certain conditions in order to keep your license (for example, go through a treatment program).
- Probation. The board may place you under monitoring or supervision for a time.
- Formal reprimand. The board may place a formal reprimand in your file.
Bear in mind that any disciplinary action taken by a licensing board—even a reprimand—becomes a matter of public record. If a prospective client, patient, or employer looks up the status of your license, they will see any adverse actions that appear—and this could damage your credibility and discourage them from working with you. Thus, if a prior criminal conviction is eligible for expungement, it is usually in your best interest to apply for expungement for maximum protection of your license.
What is the best general process for getting an expungement?
The process for applying for expungement may differ slightly from state to state, but in most cases, here is your best pathway for obtaining an expungement.
- Determine whether your criminal conviction is eligible for expungement. There is typically a cost involved in applying for expungement, and you don't want to waste time or money on applying for an expungement that is not eligible because it will automatically be denied. We recommend first obtaining a copy of your own criminal record to see what is currently visible, then consulting with an attorney to determine whether the offense(s) in question are now eligible for expungement.
- File a petition for expungement. You'll fill out some paperwork, pay a fee, and officially file a request to have your conviction(s) expunged.
- The court reviews the petition. The court will consider factors such as the eligibility of the request, the time elapsed, other convictions, public interest, etc. In some states, the District Attorney will be allowed to weigh in on the petition. There may or may not be a formal hearing.
- Final determination/Order of Expungement. If the court approves the petition, the judge will submit an Order of Expungement to remove the requested item from your criminal record.
- Confirm the expungement. Obtain another copy of your criminal record to make sure the item in question has been removed.
How long does it take to obtain an expungement?
It depends on the state policies and procedures as well as the court schedule. On average, it can take 30 to 60 days for a petition to be initially reviewed—longer if there is a backlog. Realistically, it may be several months before you receive a decision.
I've filed a petition for expungement and am currently awaiting a decision. Should I go ahead and apply (or reapply) for my professional license?
We don't recommend it. Even if your offense is eligible to be expunged, it is still up to the discretion of the courts, and there are no guarantees. You also have no guaranteed timetable as to when the expungement will go through. If you have concerns that the licensing board will hold the conviction against you, it's in your best interest to wait until the expungement is official before applying for your professional license. Once the expungement is approved, be sure to pull a copy of your criminal record before moving forward with your license application to make sure the troubling item no longer appears.
How can a professional license defense attorney help me resolve disputes with the licensing board over my criminal record and expungement?
Dealing with a state licensing board over criminal convictions can be a tricky situation, even when expungement is on the table. The primary reason is that the licensing board is evaluating whether you are a) qualified to do the work and b) worthy of the public's trust. From their perspective, they actually care more about whether you actually committed the crime than if the conviction is expunged. If they believe the conviction signifies a reason not to entrust you with a professional license, they won't care whether you're trying to get it removed from your record. If they believe the conviction reflects your current ability to hold the public trust, they won't want you to have a license. The only point at which the expungement matters to them is if/when it prevents them legally from taking action against your license because of it.
For this reason, it's best to hire an experienced professional license defense attorney when your license is threatened over any type of prior criminal conviction—especially when the licensing board is threatening to deny your application or suspend/revoke your license. A good attorney will:
- Explain to you what is at stake and your best- and worst-case scenarios—and what you can do to improve your position
- Help you determine whether pursuing an expungement will improve your standing with the board and your odds of obtaining or keeping a license
- Serve as your legal representative in all interactions with the board over this issue
- Advise you on the best course of action for obtaining an expungement
- Coordinate the timing of your license application, renewal, or request for reinstatement around the status of a pending expungement
- Hold the licensing board accountable to treat you fairly, afford you due process, and adhere to all applicable laws—including respecting an expungement of your criminal record
Pursuing a career as a licensed professional requires a great deal of commitment, and it represents a major milestone on your path toward success. The last thing you need is to have a past criminal conviction throw a wrench into your plans by creating problems with the licensing board. Attorney Joseph D. Lento has a proven track record of experience dealing with difficult issues concerning state licensing boards in New Jersey and New York. If expungement is an option for clearing your criminal record, he will work tirelessly to ensure the licensing board gives you fair treatment, including honoring the expungement when it is finalized. Call the Lento Law Firm at 888-535-3686 to see how we can help.
