Disclosing an expunged conviction on a job application

**sunny** · 06-05-2005, 10:04 PM

Hi,
I have a 12 yr old misdemeanor for shoplifting that was expunged 9 years ago. I have just been offered a position as a nurse extern at a hospital. I still have a year left of school in order to apply for my RN license which I have been told will be no problem due to the time since the incident and my work history since has been excellent.
From what I have been reading up on as to California law and expungement, I am confused as to whether I have to disclose the conviction if it was expunged on the papework I will soon be filling out at the hospital. I understand I will have to disclose it when I apply for my nursing license with the State of California in another year after finishing school, but am unsure what to put on the application for this position since it does not require me to have my license.
I am not sure what records the hospital will access when running their background check and if I should check no or yes on their question "have you have ever been convicted of a misdemeanor or felony" should I check no because it was expunged and will they think I lied on my paperwork if it comes up in the background check, or should I check yes and disclose it even though it was expunged? I hope to be able to work this position and stay on after I do get my license in another year. Your advice would be appreciated. It makes me anxious thinking about both and dealing with the consequences of a stupid 12 year mistake.[/u]

**aaron** · 06-06-2005, 11:05 PM

An expungement doesn't undo a conviction, so the honest answer to "have you ever been convicted...." is "yes".

You may have a remedy under California law, as indicated on the California Courts "self-help center":

Quoting CA Dismissal of Charge

If you were convicted of a misdemeanor or a felony and were not sentenced to state prison or under the authority of the California Department of Corrections you can petition for a dismissal. This means you were given county jail time, probation, a fine, or a combination of those three. If you are petitioning for a dismissal, the court upon proper motion, may withdraw your guilty or nolo contendere (no contest) plea, or verdict of guilt if you went to trial, and enter a not guilty plea. Then the court will set aside and dismiss the conviction. From that point forward, you are considered no longer convicted of the offense. Your record will be changed to show a dismissal rather than a conviction.

**sunny** · 06-07-2005, 12:41 AM

Thanks for the reply. I do have the dismissal (expungement) as the website you referred me to indicated and I guess I am still confused as to what to answer on the paperwork as the document I received from the court states the following:
"the order does not relieve him or her of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery."

Since I am not applying for my nursing license yet, I am assuming I do not have to answer yes to the questions have you ever been convicted since my conviction was dismissed.

Other information I have found for California includes:
The California Labor Code (§432.7) says an employer cannot ask about:
• Any arrest or detention that did not result in a conviction.
• Any conviction for which the record has been ordered sealed, expunged or eradicated by the court.
• Any misdemeanor conviction for which probation has been completed.
• Any arrest for which pretrial diversion has been completed.
AND
I also found the following from a California website:
for those applying for a job and confronted with the question "have you ever been convicted of a crime?" Since the statute says "released from all penalties and disabilities," subject only to those exceptions specifically set forth in the statute, that the legislature meant what it said, that "all penalties and disabilities" means just that, and if the legislature intended to say otherwise, they would have said so. Therefore, once an order for relief pursuant to 1203.4 has been granted, the former-probationer can lawfully state that they have not been convicted of the crime when asked on a job application from a private (non-law enforcement) employer.

My question I guess is since my court documents state that "having my conviction dismissed does not release me from disclosing my conviction when applying for public office or license, does this mean I can legally say No when asked on a questionaire that does not apply to those instances?
Thanks again for your opinion.

**aaron** · 06-07-2005, 05:57 AM

I cannot tell from your description if you are expressing that your original charge was subject to a delayed disposition, or if you believe you obtained a dismissal nine years ago. If you were not convicted of the offense as a consequence of a dismissal under California Penal Code Section 1204.4 then, except as outlined in the statute (that is, "in response to any direct question contained in any questionnaire or application for public office, for licensure by any state or local agency, or for contracting with the California State Lottery"), you can answer the question by indicating that you were not convicted.

**Sassy** · 01-10-2006, 01:38 AM

Quoting aaron

An expungement doesn't undo a conviction, so the honest answer to "have you ever been convicted...." is "yes".

You may have a remedy under California law, as indicated on the California Courts "self-help center":

Quoting CA Dismissal of Charge

If you were convicted of a misdemeanor or a felony and were not sentenced to state prison or under the authority of the California Department of Corrections you can petition for a dismissal. This means you were given county jail time, probation, a fine, or a combination of those three. If you are petitioning for a dismissal, the court upon proper motion, may withdraw your guilty or nolo contendere (no contest) plea, or verdict of guilt if you went to trial, and enter a not guilty plea. Then the court will set aside and dismiss the conviction. From that point forward, you are considered no longer convicted of the offense. Your record will be changed to show a dismissal rather than a conviction.

Can you tell me where I get more info on this section. A friend had a conviction for involuntary manslaughter expunged. He did 8 months in county honor farm but is that the same as a "Dismissal"?
If it is different, can you tell us how to start the dismissal process?

Thank you.