At first it was a misdemeanor that was later lowered to an infraction. A year later it was expunged from my file. I am now ready to take my NCLEX and I was was wondering if I should disclose this to them.
BRN says that I don't have to disclose an infraction less than $1000.
However, in my case, it was a misdemeanor in the first place.
I would consult with attorney Christine McCall if I were you. She knows these licensing issues cold. She can be located here on Avvo, just search for her profile.
All my comments here are intended for general legal purposes. None of my comments here establish an attorney-client relationship with anyone. None of my comments should be relied on in taking legal action without first consulting an attorney.
My answer is yes, but I would call Christine C. McCall to verify this. She is the best. Pay her for her time on the phone with you. Her phone number is 888-406-4020.
I would want to review your entire court filed and the specific application question together with your Live Scan report before attempting an answer. I also join the chorus that Attorney Christine McCall is the expert in this area.
San Diego Criminal Defense Attorney--20 years experience--Free Consultations
I don't agree with your current info re mandatory disclosures for BRN applicants.
Here is the BRN's statement:
"1. What convictions or license discipline must be reported on the application?
All convictions must be reported, except for minor traffic violations. Both misdemeanor and felony convictions must be reported, and "driving under the influence" must be reported. Convictions must be reported even if they have been expunged under Penal Code Section 1203.4."
While this is a very in artful and badly drafted statement, there is no getting around the fact that petty theft is not a minor traffic violation.
There is also this statement at http://www.rn.ca.gov/enforcement/convictions.shtml#instruct:
"10. How does the Board determine which violations are substantially related to the applicant's license?
Pursuant to Title 16, California Code of Regulations, section 1444, a conviction or act shall be considered to be substantially related to the qualifications, functions or duties of a registered nurse if to a substantial degree it evidences present or potential unfitness of a registered nurse to practice in a manner consistent with the public health, safety or welfare. Such convictions or acts shall include but not be limited to those involving the following issues:
Failure to comply with any mandatory reporting requirements.
Theft, dishonesty, fraud, or deceit.
I think you are mistakenly conflating the dollar limit for disclosable TRAFFIC offenses with the obligation to disclose non-traffic convictions:
"2. Do you have to report traffic violations and/or automobile accidents?
Yes, if a traffic ticket was issued and you were fined over $1,000."
And, just to underscore the point, California Penal Code section 16 states explicitly that infractions are crimes in California. BRN, like other California licensing agencies, requires disclosure of all convictions of crimes -- not just convictions of misdemeanors and felonies.
Read this notice BEFORE you contact me! My law firm does NOT provide free consultations. See http://www.avvo.com/legal-guides/ugc/free-consultation-the-purposes-and-utility-of-free-for-potential-clients-and-for-attorneys for further details on that issue. Please do not call or email me with a “few questions.” I give advice, make recommendations, and answer specific questions only after reviewing the documentary record and other evidence applicable to a specific client, and only in the course of or following a conference with my client in which all of the relevant information can be identified and developed. AND I give legal advice ONLY in the course of an attorney-client relationship created and defined by a written agreement for services, signed by my client and by me or a member of my firm, for which payment has been made. NOTHING SAID HERE IS LEGAL ADVICE! My posts on Avvo in response to the public's questions are never intended or offered as legal advice. Nothing posted by me here is offered or intended as a warranty or guarantee of the outcome of any specific legal matter. All statements posted here are matters of opinion, and are expressly limited and conditioned by the fact that I do not know the facts of any individual case. Do not rely on any response posted by me as applicable to your specific problem or circumstances. Exchange of information through Avvo's Questions - Answers forum does not establish an attorney-client relationship with me or my law firm. My law firm presently accepts cases involving State and federal licenses and permits; professional (State or federal licensing agency) discipline against State and federal licenses; and disciplinary and academic disputes involving universities, colleges, boarding schools, and private schools. We accept grievances, administrative claims, arbitrations, mediations, negotiations, and other non-litigation matters pertaining to employment, hospital and facility privileges, tenure, and contractual disputes. We conduct seminars and training in employment law for employers and union advocates, and in issues of professional/occupational licensing law for criminal defense attorneys. We accept NO contingency work whatsoever, and we take no matters for which CA Code of Civil procedure discovery is applicable.
Asker, you got the Avvo Special: Counting the comments, there are 11 different answers to this question and they consist of (1) response from Christine McCall and (10) people saying "listen to Christine McCall."
I'm all for listening to Ms. McCall, but her answer leaves out some helpful details. First of all, Asker, your statement that "BRN says that I don't have to disclose an infraction less than $1000" is, in fact, accurate. The application itself, in its instructions, states: "Applicants are required under law to report all misdemeanor and felony convictions." No mention of infractions until later, when it says "Also any fine, infraction, or traffic violation over $1,000.00 must be reported." (http://www.rn.ca.gov/pdfs/applicants/exam-app.pdf)
It seems to me that the language of the application, separating "infraction" and "traffic violation" lends support for the view that infractions under $1,000 are not disclosable events. In addition, when an RN renews his/her license, BRN informs him/her "You do not need to report a conviction of an infraction with a fine of less than $1,000 unless the infraction involved alcohol or a controlled substance." (http://www.rn.ca.gov/pdfs/licensees/rnrenapp.pdf) Again, support for the view that infractions themselves that involve fines of less than $1,000 are not disclosable events.
So, I don't think you've inappropriately conflated the BRN's reporting requirements, and you might have good legal cover if you decided not to disclose your infraction. But I wouldn't recommend it, and here's why: *chances are* BRN can't deny you for the infraction. Without looking at your rap sheet, I can't be certain under what penal code section you were convicted, but my guess is that your infraction is now a 490.1. If that's true (and that's a big if, as I don't have any specific information on your criminal case), then it's one of the infractions contemplated by Penal Code 17(d), which means that under Penal Code 19.8, "a conviction for an offense made an infraction under subdivision (d) of Section 17 is not grounds for the suspension, revocation, OR DENIAL of a license." [caps mine for emphasis]
So, Asker, it sounds to me like you have a great chance at your RN license. Although I think you'd have a good argument supporting non-disclosure, I recommend getting your LiveScan (your "rap sheet" as previously suggested by Mr. Finnecy) and figuring out exactly what penal code section you were convicted under, and then most likely disclosing your infraction (even if you may not have to), since BRN can't use the infraction as a basis to deny your license.
Now, they COULD use the underlying conduct that led to the infraction against you, alleged as "unprofessional conduct," but that's unlikely, and I would recommend that if you really want to learn about everything that could possibly happen to you, you go ahead and call a licensing defense attorney for advice. Like everyone else, I recommend Christine McCall!
These answers are not legal advice, and cannot be relied on as though they are legal advice. Responses to your questions on Avvo do NOT establish an attorney-client relationship with me.
When in doubt, disclose. The BRN statement excludes minor traffic violations but says nothing about excluding other infractions. Additionally, since your infraction deals with theft issues, that could easily go reflect on "professional conduct" and the Board will want to know about it. It can be addressed in a manageable way that may allow the BRN to allow you to proceed without issue. Do not rely on advice from someone who is a staff worker at the BRN. Do not convince yourself that if you convince yourself strongly enough that you don't have to disclose, that the BRN will agree with your analysis. You will then be dinged for both the infraction involving theft AND failure to disclose, which will be dealing with dishonesty, which also reflects upon professional conduct. Proceed cautiously, and preferably with counsel by your side.
Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this web site are general analyses made available for the public's general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this web site by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this web site should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline