California Medical License Applications--Reporting Criminal Records, Deferred Entry of Judgment, and Out-of-State Criminal Records

Physicians, including recent medical school graduates and physicians from other states or countries seeking a California medical license must fill out a state application which asks questions pertaining to criminal records.  Questions No. 55 through 58 pertain to criminal records that you may have to disclose.

Question No. 55 requires  you to disclose any offense for which there is a conviction, guilty plea or nolo contendere plea in California, another state, or a foreign country. The board requires that convictions expunged under California Penal Code section 1203.4 still be disclosed.  Reportable offenses include citations, infractions, misdemeanors and felonies (including traffic matters).  However, not all criminal records can be used to deny a license application. California Penal Code Section 19.8(c) provides that infractions cannot be used to deny a license.  However, it is the Medical Board's position that an infraction offense can be the basis of an offer for only a probationary license, since a probationary license offer would not constitute denial of a license within the meaning of the Penal Code. Bear in mind that only offenses deemed "substantially related to the qualifications, functions or duties of a physician and surgeon" may be used in licensing decisions. For example, an infraction based on dishonest conduct might form the basis for a probationary license offer because all licensees are held to a standard of overall honesty and intregity, while a traffic infraction likely would not.

An important exception to the disclosure requirements cited above are criminal matters dismissed after "Deferred Entry of Judgment (DEJ)."  California Penal Code Section 1000 et seq. defines DEJ and applies it to certain drug-related offenses.  However, other states have more expansively applied DEJ to a variety of offenses, including Driving Under the Influence (DUI) in some states, something not available in California. If you have had an offense dismissed after completing a DEJ program here or in another state, then California Penal Code Section 1000.4 says: "Upon successful completion of a deferred entry of judgment program, the arrest upon which the judgment was deferred shall be deemed to have never occurred. The defendant may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or granted deferred entry of judgment for the offense”.  As a result of having a criminal matter dismissed under an order from a court with DEJ, the charge(s) are deemed not to have been adjudicated and there is no arrest or conviction to report. (An exception is an application to become a peace officer.) Moreover, neither employment nor any license can be denied based on a deferred entry of judgment criminal matter. 

Question No. 56 asks for disclosure of charges or convictions that were set aside or later expunged from the court record.  However, following a challenge from our office regarding the Medical Board's demand for disclosure of diversion cases (Penal Code Section 1001.9) or cases with "Deferred Entry of Judgment" (Penal Code Section 1000.9), the Board revised its application to provide that adjudications under Penal Code section 1000.3 or equivalent non-California laws, or certain diverted drug cases, need not be disclosed.  Some states have laws equivalent to California's Deferred Entry of Judgment by another name. It is best to check with qualified legal counsel if you have such a record in your background to determine what must or need not be disclosed.

In  New York, for example, there is provision for "Adjournment in Contemplation of Dismissal".  In Illinois, a defendant may be offered "Court Supervision" with Deferred Entry of Judgment, and in Texas there is Deferred Entry of Judgment. Thus, some criminal matters in other states, including DUI charges, may be held in abeyance for a period of one year, with certain conditions imposed, which if fufilled may result in dismissal of the charges and no criminal record to report.  These matters need not be disclosed on a license application.

Question No. 57 requires you to disclose pending criminal cases in which you awaiting judgment and sentencing having entered a plea of guilty, nolo, or there has been a jury verdict of guilty.  Question No. 58 requires registered sex offenders to disclose that fact.

Any criminal matters you are required to report must also be explained in a separate written statement attached to your application.  The arrest history and criminal conviction record must be described and addressed in your written statement.  You may also be asked to provide the  original police report and court record, directly from the agencies or courts involved.

If you know you have been cited, convicted, or pled guilty or nolo contendere to any offense, unless there was deferred entry of judgment or the equivalent, or diversion completed, you will need to disclose the matter.  In the case of deferred or diverted cases, check with an attorney familiar with California law and the law of the state where the case occurred on this subject to determine the need for disclosure.  Applicants who assume that old offenses or offenses they thought were "expunged" may find themselves in receipt of a letter from the Medical Board demanding to know why they failed to disclose the offense.  Expunged cases generally must still be disclosed, and the order must be submitted to the Board.  However, due to a recent change to the statute (Bus. & Prof. Code Sec. 480) an expunged case cannot be used to deny a license. (Note: a probationary license might still result.) Expungement in other states may be different. In Texas, for example, "Expunction" results in the destruction of the record so there is nothing left to report.

The result of a failure to disclose can be as severe as license denial or may result in issuance of only a probationary license with a condition that the offending applicant take an Ethics Course and possibly community service.  These problems can be avoided through disclosure and proper legal advice.

Stephen M. Boreman represents license applicants before the Medical Board of California and Physician Assistant Board.

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