EVERYONE WHO has a professional practice license has had to answer certain questions about his or her criminal record, or lack thereof, when applying for initial licensure or a renewal. And there are plenty of minor and not-so-minor scrapes with the law that nurses might be required to report to a licensing board on an application or reapplication. Many first-time nursing licensure applicants, especially the younger crowd, may be worried about a minor criminal matter that occurred during college or high school. Seasoned nurses applying for license renewal may feel a twinge of panic over the same issues or have concerns over other matters, such as a minor drug offense (such as cannabis possession), traffic issue involving substances (such as driving under the influence), a relationship or family issue (domestic violence, simple assault, disorderly conduct, offensive touching, interference with custody), or the increasingly common social networking issues (stalking, harassment, aggravated harassment, menacing).
Many nurses and nursing students have approached me about criminal matters affecting their ability to obtain their license. Often these concerns center on substance use issues or a relationship turned sour that led to a brush with law enforcement.
When I'm asked for advice about what to report on an application, I start with the same questions:
* What happened?
* Were you arrested?
* What were you charged with?
* Were you convicted or did you accept a plea agreement?
* What was the final disposition of your case?
Many nursing license applications ask for disclosure of both criminal arrests and criminal convictions. These applications usually exclude disclosure of traffic tickets for minor moving violations only (for example, speeding, running a red light, failure to yield, or improper lane change). Prevailing law may also permit the nondisclosure of juvenile criminal records, as these are usually sealed by law and not considered part of one's adult criminal record. However, everything else on your criminal background is fair game for disclosure-and given the readily available nature of the information in this digital age, it will be discovered. Make no mistake, if you have a record and you fail to disclose it to your licensing board, you can find yourself in civil and criminal hot water and could be charged with perjury or criminal fraud.
So, what's the difference between arrest and conviction in the criminal context? Arrest simply means you were taken into custody by a sworn law enforcement officer for an alleged violation of the criminal code in your state or local jurisdiction (county, borough, township, city). Conviction means that you were found guilty of (or pleaded guilty to) the charged criminal offense through the judicial process in your state.
Is one worse than the other? Yes. Arrest is an allegation of a criminal offense; the accused is entitled to a presumption of innocence. Conviction is a determination of guilt for which some criminal penalty is imposed by law.
One thing is certain. If you're asked on a licensing application about your criminal arrests and convictions and they remain outstanding, you're likely required to report them to your licensing board on your licensure application. If you fail to do so, you give the Board of Nursing grounds to initiate an investigation and potentially deny your application.
The remedies available to a nurse or nurse applicant with a criminal blemish on his or her record vary from state to state based on the state's criminal code, and usually depend on whether the incident involved an arrest or a conviction. Expungement is generally available for a criminal arrest record only, or in certain jurisdictions, for a minor misdemeanor criminal conviction. A gubernatorial or presidential pardon applies only to criminal convictions. Expungement is a judicial process; a pardon is more a political process.
Typically, people seek to expunge an arrest record when they want to apply for something that requires a criminal background check. If the person has an arrest record but the matter didn't result in conviction and didn't involve a violent crime, one may generally apply through the courts for a judicial expungement of the criminal arrest record. This process is usually straightforward, relatively quick, and involves a complete conclusion to the reporting issue. In many states, an expungement results in no reporting requirement of the expunged matters.
Criminal convictions (except very minor ones in limited circumstances) usually require a presidential (federal) or gubernatorial (state) pardon, which generally restores certain civil rights to a convicted criminal that the law otherwise removed (such as the right to vote, hold office, possess a firearm, or receive government benefits). Pardons are more complex legal matters that require extensive petitions, records, and a hearing before a constituted pardons board, and they typically take longer than the expungement process.
A pardon doesn't expunge one's criminal record unless the law of that jurisdiction specifically permits it. So as a rule, nurses with a criminal conviction who receive a pardon still must disclose their criminal record when asked. The costs of expungement and pardon vary based on one's decision to use legal counsel (recommended) or to navigate this area without counsel. Generally, the pardon process is much more costly (thousands of dollars) than the expungement process (generally around $1,000 to $1,500 in my experience).
In my years as an attorney, I've handled many expungements and secured a gubernatorial pardon. There are good reasons for using both processes. If you have an arrest record or a criminal conviction and want to clean things up before applying or reapplying for your license, you should review the criminal record avenues available to you in your jurisdiction and consult a criminal law or employment law attorney about your options.
Until next time, stay safe and keep it legal!