Category Archives: Your Criminal Record

Applying for Deferred Action With a Criminal Record

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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

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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

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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.

How Much Can Your Employer Pry Into Your Criminal Record?

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criminal record and employmentWhat do you say if you are applying for a job and the application asks about old convictions, and you have a ten year-old conviction for DUI? Or if you were arrested but never charged? Or you got your conviction dismissed? Or if you participated in a pretrial or posttrial diversion program? Or if it was just a conviction for a small amount of marijuana?

Not telling the truth can have serious consequences down the road. If the employer does a criminal background check and discovers an unreported charge, in some cases they have grounds to terminate employment. Employers, however, are prohibited from digging into certain areas of employees’ and applicants’ criminal records. There are different rules for private and public employers. And for certain jobs, such as law enforcement, jobs involving unsupervised contact with minors or the elderly, or patients or medications, employers may look further. Below is a breakdown of the law. If you have further questions, an experienced employment or  defense attorney can help.

PRIVATE EMPLOYERS (private companies—not government entities)

May not ask you—verbally or in writing—about: May ask about:
Misdemeanor convictions that have been dismissed pursuant to Penal Code section 1203.4.  Exception:  if you will be having unsupervised contact with minors, working with patients or medications in a health care or assisted living facility, or applying for licensure to any state or local agency—but if you have gotten the conviction dismissed, you may state that the conviction was dismissed.
Arrests or detentions that did not result in conviction (plea, verdict, or a judge or jury’s finding of guilt where no sentence was imposed).*
Successful completion of a pretrial or posttrial diversion program (community service, graffiti removal, mentor programs, substance about counseling, domestic violence counseling, etc.).
Convictions for small amounts of marijuana or related paraphernalia that are over two years old.
Exception: health facilities may ask about arrests, diversion programs, and older marijuana and marijuana related convictions if the employee or applicant seeks to hold a position working with patients or drugs and medications.  Law enforcement agencies also have an exception, although those agencies are usually public, not private, employers.
Arrests for which the employee or applicant is currently out on bail or currently out on his or her own recognizance pending trial.
Convictions that have not been dismissed (including by plea, verdict, or a finding of guilt where no sentence was imposed).**

 

*If you were arrested but charges were never filed, you may want to file a petition with the court to get your arrest reduced to a detention. An experienced attorney can assist you with this procedure.

**If you have a conviction for which you have successfully completed probation, you may be able to get the conviction dismissed with the assistance of an attorney (Expungements).

PUBLIC EMPLOYERS (Including: jobs in government entities or requiring a government-issued license, certificate or permit, work requiring a government security clearance, work in hospitals or with children or the elderly, and government contracts.)

May not ask you—verbally or in writing—about: May ask about:
Arrests or detentions that did not result in conviction (plea, verdict, or a judge or jury’s finding of guilt where no sentence was imposed).*
Successful completion of a pretrial or posttrial diversion program (community service, graffiti removal, mentor programs, substance about counseling, domestic violence counseling, etc.).
Convictions for small amounts of marijuana or related paraphernalia that are over two years old.
Exception:  law enforcement and health facilities may ask about the above if the employee or applicant seeks to hold a position as a peace officer, with the Department of Justice, or working with patients or drugs and medications.
Convictions that have been dismissed.  If you got the conviction dismissed pursuant to California Penal Code Section 1203.4, then answer “Yes, dismissed pursuant to Penal Code section 1203.4.”
Arrests for which the employee or applicant is out on bail or out on his or her own recognizance pending trial.
Convictions that have not been dismissed (including by plea, verdict, or a finding of guilt where no sentence was imposed).

*Frequently, licensing boards and other governmental entities ask applicants about arrests but not detentions. If you have on your record an arrest that did not result in conviction, you may want to petition the court for a certificate of detention only (a remedy available under California Penal Code Section 849.5). An experienced attorney can help you with this procedure.  Contact attorney Thomas Greenberg for a free lawyer consultation to learn more.

Does Probation Allow Medical Marijuana?

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Does probation allow medical marijuana

Probation is a means by which the courts try to hold you accountable for your crime without having you taking up jail space or other resources. While you have the leisure of being free from jail, you are still under many restrictions, and by agreeing to be on probation you sign away many of your rights.

Abstaining from drugs and alcohol is often one of the terms of probation, and you risk a probation violation and potentially new charges if you test positive. Generally, if you test positive for a prescription drug like Oxycodone (Vicodin) but you have a valid doctor’s prescription, you will not be violated. Medical marijuana, however, is treated differently.

In most counties in California, a doctor’s recommendation for medical marijuana is not enough to avoid a probation violation. In these counties, you must ask the court to authorize the use of medical marijuana, either by putting the matter on the court’s calendar for a brief hearing or by filing a formal motion to modify the terms of your probation. The Probation Department does not have discretion to allow you to use medical marijuana, however, your probation officer might assist you with putting the matter on the court’s calendar. If not, ask a competent defense attorney.

If you are facing a probation violation for medical marijuana, it may make a difference whether your initial, underlying offense was related to marijuana or other drug use. In the case People v. Tilehkooh (2003), the California Court of Appeal struck down a probation violation for misdemeanor possession of marijuana and eliminated the condition that the defendant abstain from marijuana because the his initial offense was not drug related. The court stated that because his initial offense was not drug related, prohibiting the use of medical marijuana served no rehabilitative purpose. However, if restricting marijuana is reasonably related to your original offense, the court is more likely to uphold the prohibition. An attorney familiar with this area of law can advise you as to your best course of action.

Background
In August 2008, the California Department of Justice issued guidelines that many probation offices around the state follow. These guidelines provide that: “Criminal defendants and probationers may request court approval to use medical marijuana while they are released on bail or probation. The court’s decision and reasoning must be stated on the record and in the minutes of the court.” (CA DOJ Guidelines for the Security and Non-diversion of Marijuana Grown for Medical Use)

The California DOJ guidelines reflect the California Health and Safety Code, Section 11362.795(a), which states:

(1) Any criminal defendant who is eligible to use marijuana pursuant to Section 11362.5 may request that the court confirm that he or she is allowed to use medical marijuana while he or she is on probation or released on bail.

(2) The court’s decision and the reasons for the decision shall be stated on the record and an entry stating those reasons shall be made in the minutes of the court.

(3) During the period of probation or release on bail, if a physician recommends that the probationer or defendant use medical marijuana, the probationer or defendant may request a modification of the conditions of probation or bail to authorize the use of medical marijuana.

Avoiding the dreaded DUI — Practical Tips on Protecting Your Rights & Record

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Should I take a taxi? Should I get a ride? Should I stay over? These are all great questions.

Life is complicated enough and now you have to worry about running into some random DUI checkpoint you can’t avoid. Stop right now and Google DUI checkpoints in your area. That way you can get an idea what the hot spots are for police on a Friday or Saturday night. Let us help you locate these roadblocks in advance with this DUI Checkpoint Location service as a free and helpful guide for avoiding a San Diego California DUI.

What about roving police in general? Can you trust them to do the right thing? Or will a patrol car stop you for nothing?

Depends. What time of night is it? While day partying is safer, as less cops are out, the million dollar question can later be asked: “What good things happen after midnight?”

DUI police DO stop based on mere hunch, suspicion or curiosity. But that’s illegal. Proving it, however, is another thing. Your attorney better be good or lucky.

Make sure your taillights and headlights work, your turn signals light up, your license plate is lit, your registration is current. While this takes a second person to help check, it’s worth it. That cuts down on the possible reasons cops can come up with to stop you.

Avoid speeding. Stay in the #2 lane on the freeway. Make a full stop behind every light and stop sign. You know, driving you don’t usually do. But driving you MUST do if you’re out at night after a few glasses of wine or a couple of scotches.

So what do you do if you ARE stopped?

Well, when a cop tries to stop you, stop immediately. Do so safely.

Roll down your driver’s side window. Put your arms on top of the wheel. Smile because you are now going to try to avoid getting a DUI. Don’t smirk though.

Have ready your license, registration & insurance. You will be asked for them.

What if the officer starts asking a bunch of questions. Give the same answer: Calmly, nicely but firmly say that you would absolutely love to answer the questions. BUT, you have been advised by your lawyer NOT to answer any questions as you have the right to remain silent.

In almost every state of this fine republic, you must do a breath test or a blood test if asked. If given the choice, choose urine. If no urine offered, choose a breath test. Choose a blood test if the others are not options.

Field Sobriety Tests can be declined. Be ready to politely tell Mr. DUI cop you will NOT do any of they eye, coordination or field tests.

Preliminary Alcohol or Breath Screening Test (aka a “PAS” or “PBT”) is also voluntary so don’t do it. So unless it’s a large breath instrument, you’re not agreeing. Point is, why give them evidence they’re trying to collect but not entitled by law to have?

If you follow these steps, you may not even need a lawyer. If you are arrested by the “bowling ball” rolled by a suspicious DUI cop, don’t worry – attorneys will line up to get you acquitted because the State will have a difficult time proving you guilty.

About the Author:
Rick Mueller is a Top-Rated San Diego DUI Lawyer specializing in Drunk Driving, DUI & DMV Defense, and has over 25 years of experience. Known as the “DMV Guru,” Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol.

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

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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?

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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?

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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.

Can a DUI affect Visa Restrictions?

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DUI affecting Visa to Untied StatesDUI or drunk driving convictions can negatively affect your ability to obtain a visa for travel to the United States and potentially result in a denial of a visa application.

In cases where an applicant has received a DUI conviction, the United States government will refer the applicant for evaluation by a panel physician.  This evaluation is required in cases where an applicant has had one conviction within the past three calendar years or two convictions in their lifetime.  The applicant may also be evaluated by the physician for current signs or symptoms of alcoholism.

Section 212 of the Immigration and Nationality Act (INA), makes inadmissible any person with a mental disorder who is deemed to a threat or potential threat to themselves or others.  Section 212 makes inadmissible any applicant who is a drug user or addict.  Alcohol abuse or addiction is included in Section 212 regarding inadmissibility.  Applicants should disclose any DUI or alcohol related arrest on their visa applications.  Failure to disclose a DUI or alcohol related arrest is considered misrepresentation and will result in admissibility.

DUI convictions can also have negative consequences on citizenship applications.  A foreign national receiving a DUI while traveling in the United States can have an immigration hold placed on them.  The individual may also be deported at the conclusion of the DUI court proceedings.   Our law office frequently receives phone calls from family members of individuals who have immigration holds due to criminal arrests while in the United States.

Contact Top San Mateo DUI Attorney Thomas Greenberg to learn more.

This blog is for informational purposes only.  Reading or responding to this blog is not intended to create, and does not create an attorney-client relationship.  Do not act based upon this information unless you consult with an attorney first.  Please consult with an attorney for case specific information.  You may contact the Law Offices of Thomas Greenberg at (650) 242-0021 for case specific information.