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Should I report an arrest/conviction on a real estate license application if the DOJ shows no criminal activity?

Riverside, CA |

I was arrested over 20 years ago for driving under the influence. It was reduced to a "wet reckless" but it did not show up on a DOJ records check that I recently did through Live Scan. Should I disclose the arrest even though it isn't showing up? Also, the live scan for the license is for DOJ and FBI.......will the FBI portion show something different than the DOJ record?

Attorney Answers 5

  1. First, you should carefully consider what is being asked. Is the application asking for an arrest or a conviction? Those are two separate things.

    Second, you should consider how it may look if they find out you lied.

    If the application is asking for an arrest, you should disclose it unless it's been sealed. If it's asking for a conviction, and you were only arrested but never convicted, then you do not need to disclose.

    Any information provided through in response to a question is not, and cannot be considered a formation of any Attorney-Client relationship. Questioner understands that the nature of this system allows only for a cursory review of case information, and more detailed information should not be divulged in this public forum. As such, Questioner is recommended to contact an Attorney in order to discuss the full details of their case and a more specific advisement of potential rights and liabilities.

  2. However you decide to fill out the disclosure remember this: YOU WE'RE NOT convicted of a "wet reckless"... That is pure SLANG. There is no such offense. You plead guilty to reckless driving PERIOD. The Judge put a code into the record that indicated to law enforcement that alcohol was present in your system at the time of the arrest and that therefore it could be used against you if you reoffended in the following 5 years (back then 5 years, now it's 10 years) all time passed long ago. Just wanted you to know as it is a common misunderstanding. I remember when I first heard it used in the early 80's... DA offered "wet reckless"... ME: "Wet reckless??? What the ---- is a wet reckless!?" And that is how long it has been slang. g

  3. If they look at your CLETS it will show up. It will show up as an arrest and then a conviction of reckless driving (VC 23103 per VC 23103.5). This is a little different from simple reckless driving and it will likely show up that way. Be guided accordingly.

  4. I would disclose the conviction because if the The Department of Real Estate finds out, they may feel you were dishonest and deny you a license. The DRE will ordinarily issue an automatic denial to all California applicants with any theft history and that may apply to a conviction for a wet reckless which is still alcohol related. If you are denied a license, there is an appeals process.. If you pursue the administrative appeal process, DRE will often negotiate for the issuance of a restricted (probationary) license that will become unrestricted in 2 - 3 years.

    However, if you press the appeal for an unrestricted license, there is case law that the age of your conviction is too great to support a license denial. But that issue will require engaging in the administrative hearing process and legal counsel. For many real estate salespersons, a restricted or probationary license is useless because the major brokers and brand name sales agencies cannot hire agents with restricted licenses because of the terms of their liability coverage.

    Don't accept a probationary license unless you know you can be employed even on restricted status. One of the conditions of probation is a certain amount of work per month or week in the licensed field. If you can't get hired, you can't meet the conditions of your probation, and so on.

    DRE can be very rigid and unyielding. With this agency in particular, applicants need to be mentally and financially primed for a fight.

    Finally, I would consult with a lawyer who handles administrative hearings, such as Christine McCall from Pasadena. She used to be an administrative law judge and knows this area quite well.

    The information and legal suggestions made herein do not in any way create an attorney-client relationship. The responses provided herein discuss general principles of law and should not be relied upon by the asker in making legal decisions. Only an attorney who has met with the asker and fully reviewed the facts and circumstances of the asker's individual case should be relied upon for legal advice. If you find my suggestions helpful, please mark the appropriate box as helpful.

  5. You are thinking about being untruthful to the State of California because you think it won't get found out? Bad, bad bet.

    The single most common ground in California for the denial of a license for any of the 800+ professional and occupational categories that must be licensed or credentialed by the State is omission of information on the application relating to past criminal offenses. This is a regrettable fact because in many (maybe most) cases, disclosing the information -- even if it is highly unfavorable to the applicant -- would not have resulted in denial of the license.

    Here are a few of the most typical reasons license applicants give for having omitted information called for by the application:

    - I forgot about it.
    - I forgot about it because it was so long ago.
    - I forgot about it because I have so many convictions I can't remember them all.
    - I forgot about it because the only thing that happened is that I was on probation.
    - I forgot about it because that conviction has been expunged.

    And then there are those who left the information out because they "knew" it would not turn up because...

    - My name has changed since then.
    - It was in a different state.
    - I got a copy of my criminal history and it wasn't on there.
    - It was so long ago, there are no records.
    - That conviction didn't turn up when I got my other kind of license a few years ago.
    - I didn't think they meant this kind of conviction.

    The staff at the licensing agencies has heard all of these "reasons" thousands of times. But the fact is, it doesn't matter whether they believe the excuse. California law provides that a license may be denied for an omission of such information from the license application, whether that omission is on purpose, which tends to show, in the State's view, a lack of integrity and respect for the law, or by mistake, which tends to show, in the State's view, a lack of care and sense of responsibility that licensees need.

    The sad fact is that many of the denials on this ground would not_have been inevitable if the full information had been disclosed. Many occupational licenses can be obtained, even where there is a past criminal record, if the criminal matter has been fully resolved (including completion of any probationary terms) and if the applicant can demonstrate that he or she is now rehabilitated.

    There are many many ways to make a good showing of rehabilitation at a fair hearing before an Administrative Law Judge. There are not as many ways to make a good demonstration to the Judge at the hearing as to why a colorful and memorable chapter of the applicant's past was omitted.

    The licensing departments, boards and commissions make a vigorous effort to prevent this kind of circumstance from causing a denial. Their Websites all stress the importance of full disclosure, even as to ancient and expunged convictions. The license applications themselves include printed warnings about omissions. These facts make the licensing agencies less than understanding when their investigation reveals an undisclosed prior criminal offense.

    A license applicant who has genuine reason to be concerned about the potential effect of a prior criminal conviction may want to obtain the advice of an experienced attorney to discuss the situation with the Department in advance of the application.

    And applicants who have been denied licenses because of omissions of information called for by the application should also seek the advice and assistance of experienced and specialized counsel. If a timely challenge to the decision of denial is made, a result better than outright denial can often be obtained.

    No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship set forth in a written document executed by the client and by me or a member of my firm. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. I can give advice, make recommendations and answer specific questions only after reviewing the evidence and documents applicable to a specific client and following a personal meeting in my office in which the relevant facts can be developed and analyzed. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.

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