Pennsylvania Criminal Expungement and the Pennsylvania Licensee

Expungements are major issue with every professional licensee.  Many licensees are involved in some type of criminal conduct that result in enrollment into Pennsylvania’s pretrial probation – Accelerated Rehabilitative Disposition –  program (ARD).  Some cases also involve Drug Court or Section 17 dismissals under Pennsylvania’s Drug Act. I field many telephone and Internet inquiries regarding criminal convictions and ARD results that require reporting to Pennsylvania licensing boards.  Reporting is either within 30 days of arrest (Nursing Board), 30 days of conviction, or enrollment in the ARD or Drug Court programs.

An issue has arisen regarding expunging dismissed criminal records from one’s Pennsylvania administrative licensing board record.  Typically, licensees who win their criminal cases seek to have those criminal records expunged at the earliest possible date. The expungement process is found under 18 Pa. C.S. § 9122. This Chapter is known as the Criminal History Record Information Act (“CHIRA”). This provision is part of the same statutory chapter, 18 Pa. C.S. § 9161(3), that renders admissible criminal convictions in administrative licensing proceedings. As such, the necessity of expunging criminal arrests that result in not guilty, dismissals or ARD is of key value to every Pennsylvania licensee. But for the criminal charges, there is no administrative disciplinary basis under CHIRA to commence a disciplinary process.
The problem, however, unlike other states, for example Ohio, is that Pennsylvania expungement rules do not specifically provide for an expungement of a criminal arrest record subsequently dismissed that became the basis for an administrative licensing disciplinary proceeding. Pennsylvania’s expungement process allows only for specific administrative licensing expungements in drivers license matters. This is in contrast to Ohio law at section Ohio revised code 2953. 32 and 2953. 52.  This conclusion is drawn because one provision of Pennsylvania’s expungement law, § 9122(a)(3), specifically states “the court shall order the expungement of all criminal history record information and all administrative records of the Department of Transportation.” Leaving absent all other administrative licensing boards allows these Boards to not expunge their Board proceedings that rely upon criminal charges that were eventually dismissed or expunged.
This is a complex reporting issue for Pennsylvania’s nurses.  In October 2015 Pennsylvania Nursing Board regulations changed, requiring reporting of criminal arrests within 30 days of the arrest.  Other licensees who receives ARD or other pretrial probationary dismissal of offenses under the Drug Act only have to report upon the conclusion of the offense.   I am now finding that nursing license prosecutions are commencing soon after the initial reporting of the criminal arrest and not upon its conclusion.  This creates important 5th Amendment self-incrimination questions for the licensee trying to maintain their profession and their license in the midst of a criminal case.

Other cases affected by this expungement rule include enrollees of Pennsylvania Drug Act, Section 17 drug use dismissal cases, and county Drug Court programs for felony drug sale or possessory offenses. Typically, satisfactorily completing these county-based criminal court diversion programs result in dismissal of criminal charges. Thereafter, the licensee is eligible for the expungement in criminal court of those dismissed criminal allegations. Nonetheless, the licensee will have already reported on their annual renewal or initial licensure application their involvement in these criminal cases. Reporting of Drug Act or pretrial ARD or Drug Court involvement automatically results in licensure disciplinary action even though the charges are eventually dismissed and expunged.

Pennsylvania’s expungement rules do not waiver on this issue.  As well, CHIRA and the Drug Act specifically provides for automatic Licensing Board disciplinary action of any licensee enrollment in any Drug Act pre-trial probation program that eventually results in dismissal and expungement eligibility.  It is the old fashion Blue Law, religious based abstinence theory of the Pennsylvania laws that have not progressed with the rest of the country.  Kicking people out of their jobs and taking their licenses, rather than treatment and keeping them productive members of society, like in OHIO, is how Pennsylvania currently functions.

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