Disclosing Prior Criminal Convictions on California Professional License Applications: How and Why
Disclosure of criminal convictions on license applications and license renewal forms can be an agonizing issue. Some people see themselves facing the choice of whether to be honest and disclose, thereby possibly triggering a license problem, as opposed to lying to possibly get away with keeping their conviction a secret but risking an even more difficult situation if they are caught lying. For other individuals, it is not whether to answer yes or no, but rather how they should explain what happened.
Going to the first issue, when I am asked whether one should disclose a conviction, the answer is almost always yes. Indeed, a relatively minor criminal conviction can be aggravated by non-disclosure. In other words, some minor criminal convictions may not trigger license discipline or denial, but lying about the conviction can make license discipline or license denial more likely.
Expunged convictions must always be revealed. An expungement in California does nothing to conceal, remove or clear the conviction for licensing purposes. By the same token, out of state convictions that have been expunged or dismissed after an individual has been convicted should usually be revealed out of an abundance of caution. The primary exception to this rule can occur when someone has received a "true" dismissal (usually "in the interests of justice"). When in doubt, however, disclosure is the best policy. Once a conviction is revealed, almost all licensing agencies will ask for certified court documents and a written explanation. Certified court documents can be obtained from California courts without difficulty.
If an applicant hides what they believe is a "dismissed" conviction and it turns out they are wrong, again, they may be seen as lying. All in all, it is best to only put "no" if a license law attorney with extensive criminal defense experience (like myself) reviews the criminal case records and the application side-by-side and declares the disposition of the criminal case a non-disclosable event.
After an agency receives an application, the agency will run California Department of Justice and FBI background checks to scour the applicant's background for arrests, indictments, and convictions, even from 20 years ago, even in other states, even for a DUI the applicant got when she was 18. If you want to find out, in advance, what these background checks will show, both the California Department of Justice and the FBI will provide you with a copy of your criminal background report from each agency for a reasonable fee. This is a good investment to get information if you have an old or extensive criminal record.
So why does the agency, which can do a background check, even ask for criminal conviction information? The agency is giving the applicant a chance to "come clean" with the agency. Another way of looking at it (and, in my view, the key) is this is a test of the applicant's honesty. If the individual with a criminal record answers "no," then even if they swindled their boss 25 years ago, it is not ancient history, because the applicant is still a dishonest person, according to fresh evidence - their license application - sporting a lie told in 2010. Of course, there is a chance that the licensee will inadvertently lead the agency to a deeply hidden or obscure conviction by disclosure - but guess what? - if the agency can't prove the conviction (usually true if they can't find it) they probably can't use it against the applicant.
Once the issue of whether to check "yes" or "no" is resolved, there is the explanation that typically accompanies the form or is requested by the agency after its receipt. I advise clients to make their conviction explanations concise, honest and remorseful. It is a good idea to have the explanation reviewed by an attorney before submitting it. The explanation should be concise because longer statements might contradict official accounts or devolve into making excuses and blaming others - all very harmful things in an explanation. The statement must be honest, but since accounts of the incident may differ - the police report may differ from your account , for example- it is better to stick to a short factual summary and forego details. Finally, remorse must show insight. Everyone who has a criminal conviction regrets that they got caught. Showing an understanding of how the bad conduct affects those around us and our society, and can place others in danger, shows true rehabilitation.
For example, someone who was convicted for DUI might make this statement: "I am sorry that I drove drunk, I spent the night in jail and lost my job when I didn't show up the next day. I really regret it." This statement shows more that someone is sorry for themselves than truly remorseful. The lesson learned is, next time, don't get caught! This is not helpful. A better statement is: "I made a terrible mistake driving drunk. I endangered the other drivers on the road with my carelessness. Others might have been hurt, even killed." Many people who have been convicted, even defendants pleading for mercy at their sentencing hearings with the advice of skilled lawyers, fail to show true remorse. You have just a short statement to make which a licensing agency may use to decide whether to discipline you or not or whether to deny your application. Your statement might even be used in a hearing. It is therefore crucial to reflect upon your mistake and show true insight in your explanation.
It can take courage to make an honest and thoughtful disclosure on a license application or renewal. However, licensing agencies demand, and expect, honesty. The character of a licensee or applicant is evaluated (or re-revaluated) based upon what little information the agency has about them. Lying to the agency is never worth the black mark it can cause if it is discovered.