On September 28, 2014, Governor Brown signed Assembly Bill 2396, which added language to Business and Professions Code section 480. This addition to the law provides that an individual with an expunged conviction cannot be denied a license solely because of the expunged conviction, notwithstanding any other law in the Business and Professions Code. This new law will give relief to certain applicants applying to certain state agencies for licenses, once it becomes effective on January 1, 2015.
An expungement in California is a court order issued after probation is complete, or after more than one year after a conviction for which no probation was ordered, dismissing the conviction in a limited fashion. Expungement is granted upon a motion after successful completion of probation, although there is no uniform definition of what "successful" means. For example, if a defendant failed to complete community service and was found in violation of probation, although the issue was ultimately resolved (say, by additional punishment) and probation was completed, some judges might conclude probation was not "successfully" completed. An expungement is not available if the defendant served time for the conviction in state prison. There is no equivalent to California's expungement in federal courts.
The new law only applies to agencies under the Department of Consumer Affairs (DCA). So, for example, the Department of Insurance and the Department of Social Services (which are not under DCA) are not affected by this change. Also, some agencies under the Department of Consumer Affairs, such as the Medical Board of California, have their own laws which allow expunged convictions to be used to deny a license application. Under the laws that govern expungements, an expunged conviction always has to be revealed to a licensing agency if they ask. Also, an agency may still use the facts and evidence in the criminal case to prove unprofessional conduct, which is possible under a number of other laws. The is no federal court expungement. Out-of-state convictions are not affected by this change.
One agency certainly affected by this change is the Bureau of Real Estate (BRE). It appears that starting in 2015, an expunged conviction cannot be used by BRE to deny a license. However, if a licensee fails to disclose a conviction, or has some other adverse action in their background, that could be used as an independent ground for denial, which then allows the conviction to be used as well. Also, dishonest conduct or theft leading to a conviction could be used as an independent ground for license denial.
It remains to be seen how other agencies under DCA will implement this law. There are other legal ways for most agencies to use the conduct in criminal matters to deny licenses. However, where a conviction is rather old and the police reports have been destroyed or are otherwise unavailable, it will be very difficult or impossible for an agency to prove the conduct leading to a conviction in order to deny a license.
An example of one category of applicants that would probably not be affected is nurses with drunk driving convictions. A drunk driving conviction constitutes the dangerous use of alcohol, an independent basis for denial of a license regardless of conviction. Since the new law only applies if the sole ground for denying an applicant is the expunged conviction, if an agency can come up with any other theory for denial, presumably the expunged conviction can still be used. This is only one example of the ways in which an agency can bring up past adverse events and problems from the application process to broaden the reasons for license denial and then use the expunged conviction.
We look forward with great interest to the implementation of this new law in 2015. In the meantime, expungement has been and continues to be helpful to show rehabilitation that can be persuasive in a license application and license denial appeal. Therefore license applicants should seek expungement of prior convictions whenever possible. Since these laws are complicated, if you are applying for a license and have convictions in your background, call our office for a consultation to see if these laws will apply to your situation.