Applying for Deferred Action With a Criminal Record

Will your criminal record be a bar to your eligibility for Deferred Action for Childhood Arrivals? The new deferred action immigration policy has several eligibility requirements including a relatively clean criminal record. If you have a minor conviction on your record, are you still eligible? Is it worth getting your conviction expunged or dismissed? And if you are considering a plea bargain, are there certain charges you should avoid?

If you apply for deferred action status, the Department of Homeland Security (DHS) will consider you entire criminal record—including arrests and dismissed convictions, but not all convictions are considered bars to eligibility.  Below is a brief explanation and links to further resources.

1. Deferred Action is a discretionary policy, but these offenses generally disqualify an individual at the outset:

  • A felony conviction (offenses punishable by more than one year of imprisonment).
  • A “significant misdemeanor” conviction. “Significant misdemeanors” include: domestic violence, sexual abuse or exploitation, unlawful possession or use of a firearm, drug sales, burglary, driving under the influence, and any other misdemeanor for which you received a jail sentence of more than 90 days.
  • Multiple misdemeanor convictions: three or more non-significant misdemeanors, not including traffic offenses (such as driving without a license).
  • Convictions suggesting that you pose a threat to national or public safety (e.g., with gang enhancements).

Even if you have the above types of convictions on your record, you may be eligible under exceptional circumstances (See INA 240(e)).

How do you know what type of conviction you have? If you are considering applying for deferred action, you should request your entire criminal record (from the FBI as well as the Department of Justice in any state where you lived or were arrested) so that you can check for the exact status of any contact you have had with law enforcement and also so that you can check it for mistakes.

2.  Is it worth it to get an old conviction dismissed or expunged?

Having an old conviction dismissed or expunged may help your application if your conviction would otherwise automatically disqualify you. The Law Offices of Thomas Greenberg has extensive experience getting old convictions dismissed and can help you.

Another option—better than getting a dismissal—would be to withdraw your plea (if it was recently entered) for good cause under California Penal Code section 1018 or have your plea vacated (undone) for legal error.  It can be a complex and difficult process to get a judge to vacate your plea, but it may be worthwhile.

3.  What about juvenile convictions?

Juvenile convictions do not automatically disqualify you for deferred action, however, they will be considered.

4. What if you have criminal charges pending?

If you have a criminal case pending, tell your attorney that you are a noncitizen and that you want to try to preserve your eligibility for deferred action. You may want to consider the following options, if available: informally deferring an entry of plea; seeking a deferred adjudication; entering a plea to a lesser, non-significant misdemeanor offense and obtaining a lesser jail sentence; pleading to an infraction or a minor traffic offense—if you are facing a DUI, you definitely want to try to pursue a lesser plea to protect your eligibility for deferred action. The Law Offices of Thomas Greenberg has been very successful in helping clients get charges reduced and protecting their immigration status.

Additional Resources:

Own the Dream http://www.weownthedream.org/

Immigrant Legal Resource Center http://www.ilrc.org/news-events/new-updated-resources-on-criminal-bars-to-deferred-action-for-childhood-arrivals

U.S. Citizenship and Immigration Services: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f2ef2f19470f7310VgnVCM100000082ca60aRCRD&vgnextchannel=f2ef2f19470f7310VgnVCM100000082ca60aRCRD

 

Your Criminal Conviction and Your Job Application

Applying for a Job With a Criminal Record

The federal government is realizing how much criminal convictions for even minor transgressions of the law can hold people back from getting or keeping jobs. Currently, one in four Americans has a criminal conviction of some sort. Employers have a lot of access to applicants’ background reports. Employers can hold some convictions against you, but not others, and employers are required to follow certain procedures when looking into your criminal background.

This new video by the Federal Trade Commission provides some helpful information about how to deal with your criminal conviction when applying for jobs and what rights you have if you think an employer is discriminating against you for your criminal record:

http://www.ftc.gov/multimedia/video/jobs.shtm

 

 

CPA Licenses and the Duty to Report Convictions

What Must You Disclose When Applying for Initial CPA License in California or When Reapplying After License Lapsed?

When applying for your initial CPA license in California, you must disclose any and all convictions—felonies, misdemeanors, and infractions—only minor traffic infractions may be excluded. Disclose your convictions on the required “Criminal Conviction Disclosure Form” that you submit with your application to the California Board of Accountancy (CBA).

  • You are required to disclose any pleas, verdicts, or findings by a trial court, even if the conviction may not be final or the sentence actually imposed, until appeals are exhausted.
  • DUIs are not considered minor traffic infractions (they are misdemeanors, or in some cases felonies), and must be disclosed.
  • You are required to disclose convictions that arose from military service, convictions in which the imposition or execution of sentence was suspended, convictions which arose as a result of a failure to appear, and any for which an order of rehabilitation was entered.
  • You are also required to report convictions that have been expunged or dismissed or for which a pardon was granted. Even though you are required to report expunged or dismissed convictions to the California Board of Accountancy, it is still advisable to get any and all convictions eligible for reduction or dismissal for reduction, reduced and dismissed. For more information about getting convictions expunged in San Mateo, Santa Clara, and San Francisco counties, see http://www.defendca.com/expungement-san-mateo.php

For any convictions other than minor traffic infractions, you will need to provide details including: the date of arrest, city and state where arrested, name and location of court where case was heard, details of the violation, details of the sentence imposed, conditions of probation, and fines ordered.

In addition to submitting the Criminal Conviction Disclosure Form, you will also have to furnish your fingerprints to the CBA. The CBA will conduct a criminal history record check with the California Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI). In addition to authorizing a background check, submitting your fingerprints also authorizes the CBA to receive subsequent criminal conviction information on you as an applicant or licensee.

Do CPAs Have An Ongoing Duty to Report Arrests, Charges, or Convictions to the California Board of Accountancy?

When you furnish your fingerprints to the California Board of Accountancy (CBA), you not only authorize the board to conduct a criminal history record check, you also authorize the Board to receive subsequent criminal conviction information on you as an applicant or licensee. Criminal conviction information the board receives includes notice of any plea or verdict of guilty, and any conviction following a plea of nolo contendere (no contest).
Criminal convictions can trigger the CBA to take disciplinary action against you, including revocation or suspension of your license, conditions of probation such as ethics courses or fines, refusal to renew your license, or censure.

You must report to the board in writing, within30 days of the knowledge of a conviction for:

(A) Any felony.
(B) Any crime related to the qualifications, functions, or duties of a public accountant or certified public accountant, or to acts or activities in the course and scope of the practice of public accountancy.
(C) Any crime involving theft, embezzlement, misappropriation of funds or property, breach of a fiduciary responsibility, or the preparation, publication, or dissemination of false, fraudulent, or materially misleading financial statements, reports, or information.
Be aware that California courts are required to report to the board convictions and judgments listed above under (a) and (c), within ten days of entry.

The board is permitted to take action when the time for appeal has elapsed, the conviction is affirmed on appeal, or when an order granting probation is made—however, it is often in your interest to report initial pleas and sentence pronouncements.

The law says that the board can only take away your license based on a conviction that is substantially related to the qualifications, functions, or duties of an accountant. The board specifies that this includes crimes involving dishonesty, fraud, or breach of fiduciary duty, as well as violations of the California Accountancy Act. In addition, the CBA has tried to discipline CPAs for DUI and domestic violence convictions. You will want to argue to the board that the conviction in your case is not related to the job and does not implicate your fitness to perform your profession.

The Law Offices of Thomas Greenberg can help you get the best possible outcome in your criminal case. As our office handles criminal matters exclusively, we will consult with an experienced employment attorney regarding proceeding before any administrative board.

I am an Attorney with a DUI, Felony or Misdemeanor. What are the consequences?

What can I be disciplined for?

The State Bar, Office of the Chief Trial Counsel, is a consumer protection agency, and to that end its mission is both focused and far-reaching. Attorneys are held to a higher standard than the general public by the fact that almost any legal transgression can be grounds for professional discipline.

Under Business and Professions Code §§ 6101, 6102, the State Bar receives notice of criminal charges and convictions. Upon notification, and investigation is opened immediately, although there may be little action taken while the case is resolved in plea bargaining or trial.

The State Bar’s main inquiry into its members’ conduct is whether it constitutes moral turpitude per se, or is “other misconduct warranting discipline” in order to protect the public, the courts, and the integrity of the legal profession, and to preserve public trust in the profession. Conduct such as multiple convictions for drunk driving as is considered grounds for discipline because a serious substance abuse problem presents the public, and the attorney’s clients, with potential harm.

When can/will the State Bar discipline me?

Although an investigation may be opened promptly, there may be little action that you are aware of until the case has resulted in a conviction or plea of guilty or no contest.

What must I report?

Attorneys are required to self-report to the State Bar of California all felony charges and convictions as well as misdemeanors committed in the practice of law and some misdemeanors committed outside the practice of law. The duty to report felonies and misdemeanors includes the following: (1) the bringing of an indictment or information charging a felony, (2) a verdict of guilty, or a plea of guilty or no contest to felony charge(s), and (3) the conviction on any felony or misdemeanor that is committed in the course of the practice of law, or in a manner in which a client of the attorney was the victim, or—regardless of whether it was committed in relation to the practice of law—felonies and misdemeanors that involve “improper conduct of an attorney, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type.”

You must report to the State Bar within 30 days of any such conviction, verdict, or plea. The State Bar has a form for reporting a criminal charge or conviction. That form is available here: http://www.calbar.ca.gov/Attorneys/MemberServices/ReportingRequirements.aspx#c3. You can also report by updating your online State Bar profile at https://www.calbar.ca.gov/Attorneys/MyStateBarProfile.aspx

In addition, Business & Professions Code 6068(o) requires attorneys to self-report to the State Bar of California:

  • An entry of judgment in a civil action for fraud, misrepresentation, breach of fiduciary duty or gross negligence committed in a professional capacity;
  • The imposition of judicial sanctions ($1,000 or more);
  • The reversal of a judgment based on misconduct, gross incompetence or willful misrepresentation;
  • If three or more lawsuits dealing with malpractice issues are filed against him or her in a 12-month period;
  • Imposition of discipline by a professional or occupational disciplinary agency or licensing board (such as Bar Associations in other states, the SEC, etc.) (Note: this includes claims against any firm in which the attorney was a partner at the time of the conduct complained of and any law corporation in which the attorney was a shareholder at the time of the conduct complained of unless the matter has already been reported by the law firm or corporation);
  • If not in possession of professional liability insurance, self-report any settlement, judgment, or arbitration award as specified by statute;
  • And, when employing a disbarred, suspended or involuntarily enrolled inactive lawyer, an attorney must comply with restrictions and inform the State Bar and clients.

The State Bar provides forms for complying with the above-described requirements, available at http://www.calbar.ca.gov/Attorneys/MemberServices/ReportingRequirements.aspx#c3. For questions, contact the Member Services Center, 1-888-800-3400.

What if I don’t report a conviction or guilty plea?

It behooves you to comply with all of the State Bar’s reporting requirements. The State Bar receives notice of criminal charges and convictions fairly immediately. The State Bar is also notified when a California-licensed attorney is placed in, returned to, or released from inpatient status at the California Rehabilitation Center or its branches, or discharged from the narcotics treatment program.

Although a criminal charge or conviction and the circumstances giving rise to such an outcome are extremely stressful, failure to report them to the State Bar within 30 days will only make matters worse: the State Bar will add a failure to report charge to its case against you.

Am I doomed if I receive a conviction?

Not necessarily—but you might be if you don’t obtain counsel or representation skilled in State Bar discipline.

The State Bar does not ignore all misdemeanors, and not all felonies result in disbarment. The State Bar prosecutes most misdemeanor cases and all felonies. The State Bar first inquiry is whether the elements of the crime constitute moral turpitude. If so, a felony crime usually results in suspension or disbarment and a misdemeanor involving moral turpitude results in an interim suspension pending the outcome of the State Bar process. Conduct not constituting moral turpitude may be considered “other conduct warranting discipline” because of its potential to put the public or the attorney’s clients at risk.

It is a good idea to ask your criminal defense attorney to consult with disciplinary counsel. The State Bar disciplinary system is quite different than criminal trial courts, and one of the biggest mistakes an attorney can make is to respond to a State Bar investigation and prosecution like a defendant in criminal court. For example, the State Bar disciplinary system is much more amenable to respondents who take responsibility for their actions than the criminal justice system is toward defendants. Attorneys often wrongly assume that it shows culpability and is disadvantageous to hire defense counsel when facing the possibility of discipline. In fact, it is almost always worth the expense because the system is so different than is often assumed, and the State Bar generally looks favorably upon attorneys hiring counsel because State Bar defense counsel tends to be efficient and dispassionate.

Finally, the State Bar Lawyer Assistance Program for attorneys who have alcohol, drug, or mental health problems that have led into disciplinary issues is a great resource. Enrollment and successful completion in LAP can greatly reduce an attorney’s suspension or other discipline.

I am a Doctor with a DUI. What Should I Do?

The Medical Board of California is vested with the power to discipline physicians by revocation, suspension or restriction of the physician and surgeon’s medical certificate, as well as to impose various conditions and limitations on the practice of medicine. In its discretion, the Board may opt not to discipline, or to issue a public or private warning.

What convictions trigger discipline?

Criminal convictions that are “substantially related” to the qualifications, functions, or duties of a physician can trigger discipline, however, be aware that the definition of “substantially related” is broad. Felony convictions and indictments are reported to the Medical Board and thereby trigger the disciplinary process. In addition, substance-related convictions, whether felony or misdemeanor, can trigger discipline. DUIs trigger discipline, as do substance abuse and public intoxication convictions.

The Medical Board can discipline for personal use of a controlled substance and for DUIs.

The Board has the power to discipline members for drug-related felonies and misdemeanors. The Board’s disciplinary power includes the power to discipline members for prescribing or personal use of a controlled substance—or of alcoholic beverages—to the extent or in such a manner as to be dangerous or injurious to oneself, any other person, or to the public. The Board regards these actions as “unprofessional conduct.” DUI convictions and guilty pleas are regarded as conclusive evidence of “unprofessional conduct.”

Must I report a felony?

Doctors have an ongoing duty to report to the Board felony and misdemeanor convictions as well as felony indictments.

What equals conviction?

According to the Business and Professions Code, a plea of guilty or a verdict of guilty or a conviction following a plea of no lo contendere are all considered convictions, thereby giving the Board the right to take action.

At what point may the Board take disciplinary action?

The Board may take action against a member or applicant when the time for an appeal has elapsed, or the conviction has been affirmed on appeal, or if and order granting probation is made and the imposition of the sentence is suspended.

If you have been convicted or pleaded guilty, the board likely has received notice from the court but is waiting to take disciplinary action against you until the conviction rests. Boards generally look more favorably upon members who are forthcoming about their actions and attempt to cooperate with the disciplinary process—this system is different than the typical criminal defense system. Although of course you would not want to disclose prematurely in case you receive a favorable outcome in the courts and are then under no obligation to report.

What if I don’t report a conviction, guilty plea, or felony indictment?

Do report. The Board will be notified of your conviction, plea, or felony indictment. The Board looks unfavorably on doctors who do not self-report. It is a humbling experience, but in the long run it will be more in your favor than not reporting.

Am I doomed if I receive a conviction?

No. The Board reviews matters on a case-by-case basis, considering factors such as the nature of the act, harm or potential harm to the public, prior criminal and/or disciplinary history. The Board takes a conviction as conclusive evidence of unprofessional conduct, but that is not the end of the story because although you may not be able to dispute that the circumstances giving rise to the conviction occurred, the Board will likely be interested in your explanation and you’re your entire record. Furthermore, to the extent not inconsistent with public protection, the board strives to impose rehabilitative disciplinary actions.

At the same time, the board strives for consistency of discipline and instructs Administrative Law Judges hearing cases on behalf of the Board to impose the recommended discipline absent “mitigating or other appropriate circumstances such as evidence of responsibility and demonstrated willingness to undertake Board-ordered rehabilitation.” Therefore, it behooves you to self-report and, if the cause of the conviction is something that can be addressed through therapy or a substance abuse program, to enroll immediately.

Because the Board takes seriously criminal convictions and felony indictments, you would be well-advised to obtain an experienced criminal defense attorney who has your personal and professional interests at heart.

How will a DUI, Felony or Misdemeanor Affect My Nursing Licence?

The California State Board of Nursing may discipline any action considered “unprofessional conduct”, such as a DUI,  under the Nurse Practice Act located in the California Business & Professions Code and Title 16 of the California Code of Regulations.  The board also may take disciplinary action against a certified or licensed nurse for drug-related transgressions, including using drugs or alcoholic beverages in a way dangerous or injurious to oneself or others.  The Board of Nursing has the power to discipline for issues relating to controlled substances and substance abuse.

What equals conviction for a DUI?

According to the Business and Professions Code, a plea of guilty or a verdict of guilty or a conviction following a plea of no lo contendere are all considered convictions, thereby giving the Board the right to take action.

Should I report my DUI to the  Nursing Board?

You should report to the Board of Nursing any felony conviction, DUI and substance-related convictions whether felony or misdemeanor, misdemeanor convictions for any offense substantially related to professional duties/activities, misdemeanor convictions for charges that might be considered unprofessional conduct, and situations where a court orders you to participate in an in-patient or out-patient substance abuse program.

What if I don’t report a conviction or guilty plea for my DUI?

If you do not report a conviction you are required to report, you may face more severe professional discipline. Most professional boards receive notification from the courts every time a licensed professional is convicted of a crime. Even if your professional status never came up during your trial or plea, your identifying information is cross-indexed with the professional directories so that the Board can receive notice. You may remember supplying the board with your fingerprints upon applying for or renewing your license—that was so that the Board of Nursing could obtain notification of future criminal convictions you may receive.

When can the Nursing Board take action?

The board is permitted to take disciplinary action after the time for appeal has elapsed, or if the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence. If you have been convicted or pleaded guilty, the board likely has received notice from the court but is waiting to take disciplinary action against you until the conviction rests. Boards generally look more favorably upon members who are forthcoming about their actions and attempt to cooperate with the disciplinary process—this system is different than the typical criminal defense system. Although of course you would not want to disclose prematurely in case you receive a favorable outcome in the courts and are then under no obligation to report.

What is the Board of Nursing’s legal backing?

The Board has the power to discipline members convicted of a criminal offense involving any controlled substance as defined in Division 10 of the Health and Safety Code or any dangerous drug or dangerous device as defined in Section 4022. The Board’s power to discipline applies to improper possession, use, or distribution of a controlled substance.In addition, the Board may discipline members who use any controlled substance or alcoholic beverages to an extent or in a manner dangerous or injurious to himself or herself, any other person, or to the public.

This means that the Board can discipline its members for DUIs, especially where an injury has resulted. The Board not only has the power to discipline members convicted of a criminal offense involving any controlled substance, but also to discipline its members who are committed or confined by a court for substance abuse or addiction.

Am I doomed if I receive a conviction for my DUI?

No! The Nursing Board reviews matters on a case-by-case basis, considering factors such as the nature of the act, harm or potential harm to the public, prior criminal and/or disciplinary history. The Board takes a conviction as conclusive evidence of unprofessional conduct, but that is not the end of the story because although you may not be able to dispute that the circumstances giving rise to the conviction occurred, the Board will likely be interested in your explanation and you’re your entire record. In addition, the board considers any mitigating circumstances and evidence of rehabilitation, so it behooves you to self-report and, if the cause of the conviction is something that can be addressed through therapy or a substance abuse program, to enroll immediately.

What should I do next?

The Nursing Board takes felony convictions and misdemeanors related to job performance, controlled substances, and substance abuse seriously. If you are a professional facing a potential criminal conviction, you need an experienced criminal defense attorney who has your personal and professional interests at heart.  Do not delay; contact Defense Attorney Thomas Greenberg now to set up a time to consult about your case.  Your carreer is on the line, call (650) 242-0021 now.

California Changes Penal Code section 4019

The glory days of receiving half time credit in county jail for individuals sentenced on DUIs or other misdemeanor and felony probationary sentences are officially over.  The California legislature apparently feels that our jails are not overcrowded enough with DUI, simple drug possession, and drunk in public cases.  California’s most popular free hotel, the county jail, is opening up more beds.

Penal Code section 4019 has recently been amended (again).  Effective September 29, 2010, inmates serving misdemeanor or felony probationary sentences will receive only one third credit against their sentences.

Inmates will no longer receive half time credit on misdemeanor charges in county jail.  The California law is reverting back to its previous state in which inmates will be receiving one third credit towards their sentences.  Defendants sentenced to state prison will still receive their half time credit towards their state prison sentence.

Sex offenders and inmates sentenced to prison on strikes or strike priors will receive a maximum of one third credit for time they serve in county jail.  Those inmates sentenced to prison on violent felonies will still have to serve eighty-five percent of their sentence.

To learn more about probation & probation violations in California, contact Attorney Thomas Greenberg.