Criminal Records And The License Test
On every professional license application, the applicant must truthfully answer all prior criminal arrest and conviction questions. Prior criminal contacts range from minor shoplifting offenses, illegal drug possession offenses, to driving under the influence charges (DWI, DAI or DUI). Most jurisdictions make no distinction between felony and misdemeanor charges or convictions and admission into pre-trial diversions. Acknowledging a prior record in the application will create a stumbling block to securing a license.
Certain criminal convictions may not preclude the qualified applicant from obtaining a professional license. In some cases, the licensing board will provisionally deny the drug or alcohol DUI convicted applicant the right to sit for the license examination. A provisional denial will be tendered regardless of whether the applicant was placed in a first time offender pretrial diversion process (PTI or ARD) or was convicted.
The provisional denial requires the licensee to submit to a PHMP evaluation and agree to comply with all treatment recommendations as a precondition to sitting for the license exam. Typically, the evaluation is performed by a local, self-serving drug and alcohol treatment program. Almost always some impairment is found, or unable to be ruled out, regardless of the time difference between the criminal case, drug use history, and the license application. The Board utilizes the assessment to further buttress the impairment conclusion and compel formal PHMP participation prior to licensure.
The qualified applicant should not have to enroll in the PHMP as a condition of being granted a license. These assessments are conducted by upon untrained, non-experts who render non-scientific opinions that are not recognized in any court of law. It is my opinion that the otherwise qualified applicant should not enroll in the PHMP as condition to receive their license or sit for the test.
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Please review my blogs that extensively address the problems with these programs and the nature and manner of the drug use admissions sought, required monitoring, and the consequence of these legal admissions. Requiring three years of probation, expensive drug testing, practice monitoring, and case worker supervision is not appropriate.
Once the PHMP assessment is completed (some impairment having been found) and the applicant decides to not enroll in the PHMP, a formal denial letter is issued. The burden shifts to the applicant to prove their qualifications. This means the licensee must timely appeal the notice of denial and present their case to the Board. Presenting the case means retaining and attorney and hiring a medical expert to present to the Board a qualified opinion of a recognized expert to counter any PHMP assessor’s suggestion of impairment.
The case then becomes a battle between the applicant’s expert and the Board’s expert. Securing an expert to testify does not end the case. The expert must review all medical and criminal records and interview the applicant for 2 to 3 hours. Thereafter, the expert renders a written opinion to a reasonable degree of medical certainty that no impairment exist. It is imperative to disclose to the expert all prior contacts with the criminal justice system, medical conditions, and educational qualifications. The expert must be aware of all the necessary facts to render an opinion to a reasonable degree of medical certainty.
The types of criminal cases that may necessitate monitoring obviously include one or two drunk driving offenses. These cases, whether involving alcohol or alcohol and other prescription or nonprescription narcotics, do not automatically suggest an impairment or raise patient safety concerns. My typical client may have multiple DUI offenses spread over 10 years.
It is possible that once the Board or their attorney reviews an expert report, they may allow the applicant to sit for the examination. If not, the case will proceed to a hearing in which the Board will review the appropriateness of the application and the expert’s conclusion. If the Commonwealth does not hire an expert, the appeal should be granted without PHMP conditions. This is because the Board may not make factual findings or legal conclusions without evidence. If a license Board does not hear a Commonwealth expert testify about an impairment, and you have presented an expert, this will necessitate finding of no impairment because there is no evidence or legal basis to find monitoring as an appropriate cautionary step.
Please call me at 215-665-0766 to discuss your application case, any prior criminal records criminal convictions which you may have in the context of your seeking a Pennsylvania professional license and how I may assist you secure your future career.