A criminal conviction can have the result of suspension, revocation, or denial of a real estate license in California. However, not all convictions will result in such disciplinary actions. A number of factors will be used by the California Real Estate Commissioner to determine if a suspension, revocation or denial is appropriate.
First, it must be determined if the circumstances of the crime are substantially related to the functions, qualifications, or duties of a real estate broker or salesperson. For example, a licensee convicted of vandalism for vandalizing a home he or she is attempting to sell is more likely to be disciplined than that same licensee breaking a window during a bar fight. The Commissioner will also consider the seriousness of the offense. Generally, convictions for the following crimes are considered substantially related and can result in discipline:
· any felony;
· theft, embezzlement, or fraud;
· intent or threat to commit significant harm to the person or property of another;
· any sex crime requiring registration pursuant to Penal Code Section 290;
· repeated conduct which shows a willful disregard for the law;
· contempt of court or willful disregard for a court order; and
· two or more convictions involving alcohol or drugs where at least one conviction involves driving and the consumption of alcohol or drugs.
The Commissioner will also consider the past criminal history of a licensee to determine if discipline is necessary. In addition, those holding a real estate broker license will be held to a higher standard than those holding a real estate salesperson license due to the higher level of self-regulation.
Usually the determination of whether discipline is necessary is made by an administrative hearing on a case by case basis, after the conclusion of the criminal case. At the hearing, a licensee may appear with an attorney and present evidence that the conduct was not substantially related to the licensee’s professional duties or mitigating the seriousness of the offense. However, if the licensee was convicted in the criminal court, they may not present evidence to attempt to prove he or she was not guilty.
The administrative hearing may also include an inquiry into the facts of a conviction beyond simply the plea or verdict. For example, a defendant may plead guilty to a lesser included offense that is not substantially related to his or her profession. However, if the circumstances surrounding the original charge are substantially related to his or her profession, the board may inquire regarding those facts in making a determination on whether to deny, revoke, or suspend a license.
It is also important to understand that an acquittal or dismissal of the criminal case will not bar subsequent administrative proceedings to suspend, revoke or deny a license. Even if you are found “not guilty” your license can still be taken away! This is because the “beyond a reasonable doubt” standard in criminal cases is higher than the “clear and convincing proof to a reasonable certainty” standard applicable to the administrative hearing. In the event of an acquittal or dismissal in criminal court, it is often wise for a licensee to petition the court for a finding of factual innocence under Penal Code 851.8 to prevent action against his or her professional license. In addition, a past conviction that has been expunged from a potential licensee’s criminal record can be used as a basis for denying an application for a license.
Because of the many ways in which a professional license can be suspended, revoked, or denied, any time a licensee is facing a potential criminal conviction it is wise to have the assistance of an attorney. Contact the Law Offices of Scott R. Ball today for a free and confidential evaluation of your case.
Showing posts with label Administrative Hearings. Show all posts
Showing posts with label Administrative Hearings. Show all posts
8/11/09
HELP! I Was Arrested for a DUI! What Do I Do Now?
If you have recently been arrested and charged with driving under the influence in California, it is important to realize that time is of the essence. Your first action should probably be to contact a good criminal defense attorney. However, regardless of if and when you decide to contact an attorney, there are several important things of which you should be aware.
When you are arrested for a DUI, there are two separate and independent proceedings that are set in motion, both with the ultimate goal of punishing you. Obviously, there will be criminal charges, which will take place in the Superior Court in the jurisdiction in which you were arrested. However, there will also be a separate proceeding with the Department of Motor Vehicles where a determination will be made if your license is to be suspended.
Immediately after you are arrested the most important thing for you to do, short of obtaining a skilled attorney, is to contact the DMV’s Office of Driver Safety and request a hearing to challenge the suspension of your license. This MUST be done within 10 calendar days, or your license will automatically be suspended. The U.S. Constitution requires “due process” before your driver’s license is taken away. This means the DMV must notify you of a proposed suspension and allow you a chance to challenge the suspension.
At the hearing, you will have the opportunity to show that a suspension (or revocation) is not justified. Even if you are later acquitted by the criminal court, this hearing is the ONLY time you will be able to prevent your license from being automatically suspended.
It is important to note that since the DMV proceeding is independent from the criminal charges, if you are assigned a public defender, he or she will NOT represent you in a hearing to challenge your suspended license. Unless you retain a private attorney, you will be completely on your own trying to save your driving privileges. While it is possible to win a DMV hearing on your own, an attorney familiar with the proceeding will give you the absolute best chance to save your license.
Further, even if you lose your DMV hearing, an experienced attorney can take advantage of the proceeding by using it to obtain a favorable ruling in the later criminal charges, including possibly a dismissal. For example, by tape recording the DMV hearing, a skilled attorney may be able to later impeach a testifying officer and call into question his or her credibility. If you want to learn more about your case, contact the Law Offices of Scott R. Ball today. Any consultation is totally free and always completely confidential.
When you are arrested for a DUI, there are two separate and independent proceedings that are set in motion, both with the ultimate goal of punishing you. Obviously, there will be criminal charges, which will take place in the Superior Court in the jurisdiction in which you were arrested. However, there will also be a separate proceeding with the Department of Motor Vehicles where a determination will be made if your license is to be suspended.
Immediately after you are arrested the most important thing for you to do, short of obtaining a skilled attorney, is to contact the DMV’s Office of Driver Safety and request a hearing to challenge the suspension of your license. This MUST be done within 10 calendar days, or your license will automatically be suspended. The U.S. Constitution requires “due process” before your driver’s license is taken away. This means the DMV must notify you of a proposed suspension and allow you a chance to challenge the suspension.
At the hearing, you will have the opportunity to show that a suspension (or revocation) is not justified. Even if you are later acquitted by the criminal court, this hearing is the ONLY time you will be able to prevent your license from being automatically suspended.
It is important to note that since the DMV proceeding is independent from the criminal charges, if you are assigned a public defender, he or she will NOT represent you in a hearing to challenge your suspended license. Unless you retain a private attorney, you will be completely on your own trying to save your driving privileges. While it is possible to win a DMV hearing on your own, an attorney familiar with the proceeding will give you the absolute best chance to save your license.
Further, even if you lose your DMV hearing, an experienced attorney can take advantage of the proceeding by using it to obtain a favorable ruling in the later criminal charges, including possibly a dismissal. For example, by tape recording the DMV hearing, a skilled attorney may be able to later impeach a testifying officer and call into question his or her credibility. If you want to learn more about your case, contact the Law Offices of Scott R. Ball today. Any consultation is totally free and always completely confidential.
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