What is California Penal Code 1000.4 and will being charged with this prevent me from getting a pharmacy intern license
"...A record pertaining to an arrest resulting in successful completion of a deferred entry of judgment program shall not, without the defendant' s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate."
Does this mean that California cannot deny me a pharmacy intern license?
Attorney answers (3)
John M. Kaman
Reputation Level 20
Answered over 2 years ago.
Criminal Defense Attorney in San Francisco, CA.
I believe that my colleague's answer is incorrect. If you successfully completed a DEJ program no judgment is entered and thus you can answer the question on the pharmacy application that you have no convictions or arrests for that matter. The only profession in which you still must disclose is that of a police officer.
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I respectfully disagree with Mr. Kaman. What constitutes a "conviction" is different depending . . . .For some purposes a "conviction" means that the person has been sentenced. For other purposes a "conviction" means that the person has been found guilty or has pleaded guilty or no contest, without yet having been sentenced.
Business and Professions Code section 4301authorizes the Pharmacy Board to take action against a pharmacist or intern who has obtained his/her license by fraud, misrepresentation or mistake. Subdivision (L) provides:
"The conviction of a crime substantially related to the qualifications, functions, and duties of a licensee under this chapter. The record of conviction of a violation of Chapter 13 (commencing with Section 801) of Title 21 of the United States Code regulating controlled substances or of a violation of the statutes of this state regulating controlled substances or dangerous drugs shall be conclusive evidence of unprofessional conduct. In all other cases, the record of conviction shall be conclusive evidence only of the fact that the conviction occurred. The board may inquire into the circumstances surrounding the commission of the crime, in order to fix the degree of discipline or, in the case of a conviction not involving controlled substances or dangerous drugs, to determine if the conviction is of an offense substantially related to the qualifications, functions, and duties of a licensee under this chapter. A PLEA or verdict OF GUILTY or a conviction following a plea of nolo contendere IS DEEMED TO BE A CONVICTION WITHIN THE MEANING OF THIS PROVISION. The board may take action when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under Section 1203.4 of the Penal Code allowing the person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment."
Over the years, I have seen DEJ administered differently. In the good old days in the counties in which I have practiced you did not have to enter a plea in order to be eligible for DEJ. Within the last 10 years, many counties (e.g. Fresno) require the accused to enter a guilty plea before the court will refer to DEJ. Once the defendant has completed DEJ, he may withdraw his guilty plea, enter a not guilty plea, and the DA will dismiss the case. He would never be sentenced on the charges.
If you were never required to enter a plea in order to get relief under the DEJ provisions, your case would not fall under B&P 4301(L). If you were required to enter a plea, even if you withdrew it later and were never sentenced, I believe that situation falls under B&P 4301(L).
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Business & Professions Code (B&P) sec 475 says that a license may be denied for several reasons, including “conviction of a crime” and knowingly making a false statement on an application. B&P 480 allows the board to deny a license if an applicant has been convicted of a crime, as defined like this: “A conviction within the meaning of this section means a plea or verdict of guilty or a conviction following a plea of nolo contendere.”
However, note that B&P sec 480(3)(B) states: “The board may deny a license pursuant to this subdivision only if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which application is made.” (E.g., a drug offense would undoubtedly be “substantially related.”) Also, B&P sec 480(b) lists the criteria for “rehabilitation” which would mitigate the conviction; if the applicant can demonstrate “rehabilitation” the applicant cannot be denied a license.
As you undoubtedly know, item 8 of the application for pharmacist intern asks for the following information: "Have you ever been convicted of or pled no contest to a violation of any law of the UnitedStates, a foreign country or any state laws or local ordinances? You must include all misdemeanor and felony convictions, regardless of the age of the conviction, including those which have been set aside under Penal Code section 1203.4 (Traffic violations of $500 orless need not be reported). If “yes”, please attach an explanation which must include the type of violation, the date, circumstances, location, and the complete penalty received."
So, it’s pretty clear that if you don’t list the conviction and they find out you omitted it, you could lose your license or have your application denied. Since you are required to supply the paperwork concerning the conviction, it will show a DEJ dismissal. (It would be worth your while to go to the court clerk in the county where you picked up that charge and get a CERTIFIED copy of the DEJ dismissal.) If the Pharmacy Board denies your application you have an appeal process available to you during which you can raise Pen C 1000.4.
This answer is for general informational purposes only. There are attorneys who specialize in this, and I strongly suggest you consult one before you file your application.
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