PLEA BARGAINING OBLIGATIONS: THE NEW NORMAL FOR COUNSEL AFTER PADILLA

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1 PLEA BARGAINING OBLIGATIONS: THE NEW NORMAL FOR COUNSEL AFTER PADILLA CLE Credit: 2.0 Wednesday, June 19, :40 a.m. - 12:50 p.m. Cmbs-Chandler Rm Galt Huse Htel Luisville, Kentucky

2 A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Assciatin Cntinuing Legal Educatin handbk are intended t prvide current and accurate infrmatin abut the subject matter cvered. N representatin r warranty is made cncerning the applicatin f the legal r ther principles discussed by the instructrs t any specific fact situatin, nr is any predictin made cncerning hw any particular judge r jury will interpret r apply such principles. The prper interpretatin r applicatin f the principles discussed is a matter fr the cnsidered judgment f the individual legal practitiner. The faculty and staff f this Kentucky Bar Assciatin CLE prgram disclaim liability therefre. Attrneys using these materials, r infrmatin therwise cnveyed during the prgram, in dealing with a specific legal matter have a duty t research riginal and current surces f authrity. Printed by: Kanet Pl & Bridges 7107 Shna Drive Cincinnati, Ohi Kentucky Bar Assciatin

3 TABLE OF CONTENTS The Presenters... i Cllateral Cnsequences f Criminal Cnvictins in Kentucky... 1 "Cllateral" N Mre: The Practical Imperative fr Hlistic Defense in a Pst-Padilla Wrld... r, Hw t Achieve Cnsistently Better Results fr Clients Published Opinins, Kentucky Supreme Curt, Octber

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5 THE PRESENTERS J. McGregr Smyth New Yrk Lawyers fr the Public Interest 151 West 30 th Street, 11 th Flr New Yrk, New Yrk (212) J. MCGREGOR SMYTH, JR. is the Executive Directr f New Yrk Lawyers fr the Public Interest (NYLPI), whse missin is t advance equality and civil rights fr New Yrkers in the face f the urban challenges related t race and pverty. Thrugh the pwer f cmmunity lawyering and partnerships with the private bar, NYLPI s wrk with client cmmunities currently fcuses n disability justice, health justice, and envirnmental justice. Fr the previus thirteen years, Mr. Smyth was the Managing Attrney f the Civil Actin Practice and the Directr f Reentry Net at The Brnx Defenders, pineering the integratin f civil and criminal defense services fr indigent peple in the criminal and family justice systems. A graduate f Yale Law Schl and the University f Nrth Carlina at Chapel Hill, Mr. Smyth clerked fr Chief Judge Charles Siftn, U.S. District Curt, E.D.N.Y and was awarded the Skadden Fellwship t jin The Brnx Defenders in 2000 and establish the civil practice. He has advcated r litigated n behalf f his clients in nearly every venue in New Yrk City administrative, state, and federal. As class cunsel, Mr. Smyth als represents tw certified classes in federal curt f ver 22,000 peple falsely arrested by the NYPD. A recipient f the Kutak-Ddds Prize frm the Natinal Legal Aid and Defender Assciatin, the Legal Aid Sciety Pr Bn Award, and the Arthur Liman Public Interest Law Fellwship, Mr. Smyth has published numerus articles n the cllateral cnsequences f criminal justice invlvement and the integratin f civil legal services int criminal defense representatin. He is a member f the American Bar Assciatin s Task Frce n Cmprehensive Representatin, the ABA Padilla Task Frce, the New Yrk State Bar Assciatin Special Cmmittee n Reentry, and the Steering Cmmittee f Cmmunities United fr Plice Refrm, and is a Lecturerin-Law at Clumbia Law Schl. Mr. Smyth is the authr f Cllateral N Mre: The Practical Imperative fr Hlistic Defense in a Pst-Padilla Wrld... Or, Hw t Achieve Cnsistently Better Results fr Clients," 31 St. Luis U. Pub. L. Rev. 139 (2011) and "Frm 'Cllateral' t 'Integral': The Seismic Evlutin f Padilla v. Kentucky and Its Impact n Penalties Beynd Deprtatin," 54 Hward L.J. 795 (2011). i

6 PANEL MEMBERS: Justice Lisabeth Hughes Abramsn Supreme Curt f Kentucky Jeffersn Cunty Judicial Center 800 West Jeffersn Street, Suite 1000 Luisville, Kentucky JUSTICE LISABETH HUGHES ABRAMSON was swrn in as a Justice fr the Supreme Curt f Kentucky n Sept. 10, 2007, after being appinted t fill the vacancy created by the retirement f the late Justice William E. McAnulty, Jr. She was subsequently elected t the ffice in Nvember She has served n the Kentucky Curt f Appeals twice in her career she was appinted n June 30, 2006, t fill a vacancy in Divisin 2 f the 4th Appellate District and was subsequently elected t that psitin in Nvember She first served as a Curt f Appeals judge frm 1997 t Frm January 1999 until her 2006 appintment t the Curt f Appeals, Justice Abramsn served as a circuit judge in Jeffersn Cunty. She earned a bachelr s degree, with highest hnrs, frm the University f Luisville and graduated magna cum laude frm the Brandeis Schl f Law at the University f Luisville and was named the Outstanding Graduate f her law schl class. Befre serving as a judge, she practiced law fr fifteen years, cncentrating n business and cmmercial litigatin. In additin, she is a past president f the University f Luisville Schl f Law Alumni Cuncil and is a Master and incming President f the Luis D. Brandeis Inn f Curt. Justice Abramsn als served as a trustee fr the Kentucky Judicial Frm Retirement System Bard, is the Supreme Curt representative n the Kentucky IOLTA Bard, Chairs the Civil Rules Cmmittee, is a frequent lecturer fr the Kentucky Circuit Judges Judicial Cllege, and a 2007 graduate f Leadership Luisville. Judge Gregry M. Bartlett Kentn Circuit Curt 230 Madisn Avenue, Suite 701 Cvingtn, Kentucky (859) JUDGE GREGORY M. BARTLETT serves as Circuit Curt Judge fr the Kentn Circuit Curt. He received his B.A. frm Thmas Mre Cllege, M.A. frm Xavier University, and J.D. frm the University f Kentucky Cllege f Law. Judge Bartlett is a member f the Kentucky Crrectins Cmmissin, the Nrthern Kentucky and Kentucky Bar Assciatins. He has been published in the areas f sentencing law and plicy and is currently teaching curses n sentencing law and plicy as an adjunct faculty member at Nrthern Kentucky University Chase Cllege f Law. ii

7 Kate L. Benward Department f Public Advcacy 208 Parker Drive, Suite 1B LaGrange, Kentucky (502) KATE L. BENWARD is a Public Defender Crps Fellw with the Department f Public Advcacy in the LaGrange trial ffice. She received her B.A. frm the University f Washingtn, Seattle, and was then awarded a Fulbright Fellwship t study literature at the University f Mntreal. Thereafter she btained her M.A. frm New Yrk University and J.D. frm the University f Washingtn, Seattle. Timthy R. Cleman 201 East Ohi Street, Suite 3 Pst Office Bx 1038 Mrgantwn, Kentucky (27) TIMOTHY R. COLEMAN serves as the Cmmnwealth s Attrney fr the 38 th Judicial Circuit. He received his B.S. frm Western Kentucky University and J.D. frm the University f Kentucky Cllege f Law. Prir t becming a Cmmnwealth s Attrney, he was elected Cunty Attrney fr Butler Cunty and was a partner at Jacksn Kelly, PLLC in their Lexingtn ffice. He is the current President f the Cmmnwealth s Attrney Assciatin. Mr. Cleman recently cmpleted a term as Chair f the Kentucky Authrity fr Educatin Televisin. In 2009, he was named Outstanding Cmmnwealth s Attrney by Attrney General Jack Cnway. iii

8 Damn Prestn Department f Public Advcacy 100 Fair Oaks Drive, Suite 302 Frankfrt, Kentucky (502) DAMON PRESTON is the Deputy Public Advcate f the Cmmnwealth f Kentucky. He received his undergraduate degree frm Transylvania University and J.D. frm Harvard Law Schl. After graduatin, he wrked as an appellate defender in the Criminal Appeals Bureau f the Legal Aid Sciety in New Yrk City. Mr. Prestn has been with Kentucky s Department f Public Advcacy since Starting as a trial staff attrney in Richmnd, he mved t becme supervisr f the Paducah ffice befre pening a new DPA ffice in Cynthiana in Since then, he has managed the Appeals Branch and the Trial Divisin befre becming Deputy in iv

9 COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTIONS IN KENTUCKY Department f Public Advcacy Cmpiled and Edited by Glenn McClister Disclaimer This publicatin is fr infrmatinal purpses nly and des nt cnstitute legal advice. Any errr, inaccuracy, r missin in this publicatin des nt give rise t a claim f ineffective assistance f cunsel, r t a claim fr a disciplinary prceeding against either the Kentucky Department f Public Advcacy r any emplyee f the Department. This publicatin prvides an verview f civil cnsequences f criminal cnvictins, but des nt attempt t prvide cmprehensive legal analysis r infrmatin. Fr example, the summaries in this publicatin d nt generally include all cnditins r exceptins that culd apply in a given situatin. Als, laws f the federal gvernment, ther jurisdictins, and ther plitical subdivisins f this state may impse additinal sanctins and disqualificatins that are nt listed in this publicatin. This publicatin was finalized in March Subsequent changes t the law are nt included. **** **** **** **** Acknwledgements Much f the material in this manual is based n the 2008 wrk f sme law students at Nrthern Kentucky University's Salmn P. Chase Cllege f Law. I thank Sara M. Caudill, Try B. Daniels, Dawn L. Danley-Nichls, Ashley England-Huff, Kate R. Mrgan, Bryce C. Rhades and Nicle Y. Willet-Jnes fr their effrts (see the Bibligraphy). I als want t thank University f Luisville Luis D. Brandeis Schl f Law interns Katie Hallran and Kevin Pride fr updating all the references first identified in Public Defender Crps Fellws Kate Benward and Mihaela Beliu als deserve thanks fr reviewing the material and making suggestins. While I have attempted t ensure that the material in this publicatin is accurate as f the date f publicatin, any suggestins fr imprvement f this material will be appreciated. Glenn S. McClister Department f Public Advcacy March,

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11 Cllateral Cnsequences f Criminal Cnvictins in Kentucky 1. Intrductin... 9 The True Cnsequences f a Criminal Cnvictin... 9 Five Critical Questins fr Assessing Cnsequences Hw are yu emplyed? D yu receive any public benefits? What is yur family situatin? D yu wn, r will yu want t wn, any firearms? Where were yu brn? The Impact f Federal Law Limitatins f this Publicatin Why Criminal Recrds Matter Widespread Availability f Criminal Histry Limited Sealing and Expungement f Criminal Recrds Juvenile Curt Recrds Emplyment Critical Emplyment Areas Gvernment Licenses, Certificates, Registratins, & Cntracts Vulnerable Peple and Psitins f Trust Guilty and N Cntest Pleas The Effect f Out-f-State and Federal Cnvictins The Effect f Internal Regulatins and Plicies The Effect f Federal Law Gvernmental Discriminatin Based n Criminal Recrd Private Discriminatin Based n Criminal Recrd Public Benefits Prgrams Public Husing Fd Stamps K-TAP Federal Student Lan Eligibility Wrker's Cmpensatin Benefits Unemplyment Benefits Scial Security Veterans Benefits Lss f Other Benefits Due t a Drug Cnvictin Family Cncerns Invluntary Terminatin f Parental Rights Name Changes Adptin and Fster Care Freign Exchange Student and Au Pair Hst Families Guardian r Cnservatr Appintment Firearms Restrictins under Kentucky Law Restrictins under Federal Law Bdy Armr Restrictins under Kentucky Law Restrictins under Federal Law

12 8. Citizenship and Immigratin Inadmissibility Deprtability Categries f Offenses Other Civil Rights and Privileges Drivers License Cmmercial Drivers License University Attendance Vting Electin Participatin as a Candidate r Official Prperty Frfeiture Genetic and HIV Testing Jury Service Passprt Greater Penalties Upn Repeat Offenses Persistent Felny Offender The Federal Armed Career Criminal Act Specific Cnsequences fr Sexual Offenses Emplyment Residency and Registratin Requirements Travel between States Specific Cnsequences fr Cntrlled Substance Offenses Emplyment Public Benefits Prgrams Family Cncerns Firearms Frfeiture Citizenship and Immigratin Other Civil Rights and Privileges Greater Penalties upn Repeated Offenses Appendix I: Occupatins and Licensing Accuntant Acupuncturist Air Transprtatin, Airprts, and Pilts Alchlic Beverage Sales Alchl and Drug Cunselr Architect Art Therapist Assisted Living Athletic Agent Athletic Trainer Attrney Auctineer/Auctin Huse Operatr Audilgist (See Speech-Language Pathlgist) Banking Beautician Barding Hme Registratin Bxing Bradcast Licensing Business Opprtunities Salespersn Car Dealer

13 Charitable Gaming License (Bing Games) Child Care/Children's Services Chirpractr Cmmdities Brker Cncealed Deadly Weapns Instructr Csmetlgist Cunselr, Licensed Prfessinal Day Care Prvider Dentist and Dental Hygienist Dietician/Nutritinist Driving Instructr Drug Manufacturer/Whlesaler DUI Prgram Certificatin Electrical Inspectr Emergency Medical Technician and First Respnders Engineer Family Care Hme License Farm Labr Cntractr Firefighter Funeral Directr/Embalmer Gelgist Hazardus Materials Handler Health Care Prvider Hemp Researcher Hme Inspectr Hrse Racing Hspice Care Hunting Instructr HVAC (Heating, Ventilatin, Air Cnditining) Insurance Agent r Prducer Interpreter fr the Deaf Investment Adviser and Representative Juvenile Services Prvider Kentucky Cmmunity Crisis Respnse Bard Kentucky Lttery Crpratin Kentucky State Plice Landscape Architect Life Settlement Prvider Lng-term Care (See Assisted Living) Marriage and Family Therapist Massage Therapist Mass Transprtatin Wrker Medicaid Services Prviders Merchant Mariners Midwife Military Milk Prductin and Transfer Mining Operatins Mney Transmissin Agent Mrtgage Brker Mtrcycle Safety Instructr

14 Narctic Treatment Prgram Operatr/Emplyee Nudist Sciety Operatr Nurse Nursing Hme Administratr Occupatinal Therapist Office f Career and Technical Educatin Optician Optmetrist Ostepath Pastral Cunselr Pesticide Dealer r User Pharmacist/Cntrlled Substance Distributr Physical Therapist Physician Assistant Pdiatrist Plice Officer/Deputy Plygraph Examiner Prisner Transprtatin Private Investigatr Private Security Psychiatric Treatment Directr Psychlgist Public University Cntractr Rape Crisis Center Wrker Real Estate Appraiser Real Estate Brker r Salespersn Rental Prperty Cntracts Respiratry Therapist Schl Emplyees Senir Citizen Services Prvider Sex Offender Risk Assessment Prvider Scial Wrker Slid Waste Transprt Operatr Speech-Language Pathlgy and Audilgy Sprinkler Cntractr State Emplyment Stckbrker and Securities Sales Representative Substance Abuse Treatment Prvider Surgical Assistant Surveyr Title Pledge Lender Veterinarian Waste Site/Landfill Wrestling (See Bxing) Wrkfrce Educatin Emplyee Bibligraphy

15 Abbreviatins Used C.F.R. KAR KRS U.S.C. U.S.S.G. Cde f Federal Regulatins Kentucky Administrative Regulatins Kentucky Revised Statutes United States Cde United States Sentencing Guide 7

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17 1. Intrductin The True Cnsequences f a Criminal Cnvictin The impact f a criminal cnvictin is greater than a number f days in prisn r a number f dllars fined. Hundreds f federal, state, and lcal laws impse additinal cnsequences n peple cnvicted f crimes, many f which remain in effect far beynd any judicially-impsed sentence. Unlike incarceratin and fines, hwever, these additinal cnsequences are frequently unknwn at the time f the criminal prsecutin t attrneys, judges, and the individuals whse lives are s prfundly affected by them. The gal f this publicatin is t prvide infrmatin abut hw a criminal cnvictin may affect the life f an accused persn. The publicatin summarizes cnsequences that arise under Kentucky law and federal law, yet are nt included in the sentence impsed by a judge in a criminal case. 1 The scpe f these cnsequences demnstrates the majr impacts n the affected individuals, and indirectly, upn their cmmunities. In sme instances, I have als included infrmatin n what ne may refer t as the cllateral cnsequences f nt being able t make bnd because sme imprtant benefits can be lst, prir t any cnvictin, simply as the result f being incarcerated. Five Critical Questins fr Assessing Cnsequences Sme f the cnsequences mentined in this publicatin such as the lss f a public benefit can have an immediate impact n accused persns and their families. Other cnsequences, hwever, may be impssible t identify as issues befre a criminal case reaches dispsitin. Fr instance, a persn charged with a crime may nt be aware that he r she will ne day aspire t enter a prfessin fr which being cnvicted f that crime is disqualifying. Five questins can help individuals and their attrneys identify the cnsequences mst likely t impact their decisin-making prcess as a case mves tward dispsitin. 2 This publicatin is lsely rganized arund these questins, which are designed t be asked f peple accused f criminal ffenses: 1. Hw are yu emplyed? In many prfessins, certain charges r cnvictins can result in lsing a license r certificate necessary t wrk. Asking this questin can help identify whether an individual wrks in a field likely t track and care abut criminal activity. Students can be asked abut their fields f study and their plans after finishing schl. 1 This is the definitin f a cllateral cnsequence used by the American Bar Assciatin. See ABA Standards fr Criminal Justice, 3 rd Editin, Cllateral Sanctins and Discretinary Disqualificatin f Cnvicted Persns, Standard , These five questins are mdified versins f thse suggested by Gabriel J. Chin in "Making Padilla Practical: Defense Cunsel and Cllateral Cnsequences at Guilty Plea," 54 Hw. L. J. 675, 690 (2011). 9

18 2. D yu receive any public benefits? Eligibility fr many public benefits can be lst upn cnvictin fr certain crimes. Asking this questin can identify whether individuals are at risk f lsing critical supprt, either fr themselves r fr their families. 3. What is yur family situatin? Sme types f cnvictins can impair an individual's ability t be a part f his r her family, especially when children are invlved. Asking abut family can identify whether family relatinships are a cncern. 4. D yu wn, r will yu want t wn, any firearms? Any felny cnvictin r a misdemeanr cnvictin invlving dmestic vilence can leave an individual permanently unable t pssess a firearm. Asking this questin can bth determine whether firearm wnership is a cncern and warn against future charges fr unlawful pssessin f a weapn. 5. Are yu a United States citizen?/where were yu brn? Nn-citizens charged with crimes are ften at risk f either being deprted r being deemed inadmissible (thus prhibiting future entry int the United States). Asking these questins can determine whether immigratin status is a necessary cncern. Asking abut place f birth is a gd starting pint t determine citizenship because sme clients may nt be sure f citizenship r immigratin status. The Impact f Federal Law Federal law impses numerus cnsequences f cnvictin beynd thse created by Kentucky statutes and regulatins, but that is generally beynd the scpe f this publicatin, with a few exceptins. Sme bradly applicable federal statutes and regulatins have been included fr purpses f making this publicatin mre useful t the general public and legal cmmunity. Fr additinal infrmatin abut federal cnsequences, the American Bar Assciatin has assembled an excellent public website and an excellent manual. 3 Limitatins f this Publicatin This publicatin describes cnsequences arising under the 2013 Kentucky Revised Statutes and Kentucky Administrative Regulatins. Due t the vlume f material cvered, it is necessarily incmplete, and it des nt address all the statutes and regulatins that impse civil cnsequences. 3 Available at abacllateralcnsequences.rg. See als Internal Exile: Cllateral Cnsequences f Cnvictin in Federal Laws and Regulatins, ABA tgether with the Public Defender Service f the District f Clumbia, 2009, available at americanbar.rg/cntent/dam/aba/migrated/cecs/ internalexile.authcheckdam.pdf. 10

19 The internal plicies established by individual state and lcal agencies are als beynd the scpe f this publicatin. Thse plicies can, hwever, have a prfund impact n the cnsequences f a cnvictin. Lcal public husing authrities, fr example, may have widely different psitins n hw a cnvictin impacts eligibility. Sparse infrmatin regarding enfrcement is anther majr limitatin. Every effrt has been made t nte instances in which statutry language indicates that a particular penalty r sanctin is required. In many cases, hwever, a criminal cnvictin "may" prevent smene frm btaining a particular license, certificatin, r benefit. Hw individual agencies exercise that discretin is difficult t ascertain. In sme cases, what appears t be discretinary language culd be enfrced in a way that effectively renders a cnsequence mandatry (and enfrcement practices may change, even withut a change in the applicable statutry language). In sum, this publicatin is intended nly as a guide t be used in identifying issues. It is nt a substitute fr legal advice, and peple with specific issues related t their wn cases r circumstances shuld talk t an attrney Why Criminal Recrds Matter Widespread Availability f Criminal Histry Criminal histry recrds are mre widely available nw than ever befre. Kentucky is an pen recrds state, meaning that the custdians f criminal justice recrds may allw any persn t inspect thse recrds except under limited circumstances. KRS t KRS The general public can search Kentucky criminal curt recrds instantaneusly. 5 Any emplyer may request a criminal recrds check frm the Public Safety Cabinet, the Administrative Office f the Curts, r bth. The recrds will include any felny cnvictins, any misdemeanr prngraphy r sex ffense cnvictins, and any misdemeanr vilatins f KRS 189A (DUI) and KRS 218A (drug ffenses) within the last five years f the date f the request. KRS (1). Juvenile recrds are cnfidential under KRS (3) and will nt be disclsed t the general public. Public access t juvenile curt recrds is limited t a cpy f the juvenile petitin, juvenile curt rder f adjudicatin, and juvenile dispsitin in cases in which the juvenile was furteen years f age r lder at the time f the cmmissin f what wuld be, if cmmitted by an adult, a capital ffense, Class A, B, r C felny, r any ffense invlving the use r display f a deadly weapn. KRS (3). The same infrmatin must be distributed t the superintendent r principle f the schl r schl district the child attends when the child is adjudicated guilty f an ffense which classifies the child as a yuthful ffender r as a vilent ffender. Ntificatin is als mandatry when a child is charged r fund guilty f an ffense invlving cntrlled 4 "T the extent pssible, defense cunsel shuld determine and advise the defendant, sufficiently in advance f the entry f any plea, as t the pssible cllateral cnsequences that might ensue frm entry f the cntemplated plea." ABA Standards fr Criminal Justice: Guilty Pleas, Standard (f) (3d ed. 1999). 5 At This is the Administrative Office f the Curts website. 11

20 substances, pssessin f a deadly weapn, r physical injury t thers (1)-(3). KRS Widespread recrd availability has prfundly impacted individuals' ability t mve beynd an arrest r criminal cnvictin. Any ptential emplyer, landlrd, creditr, r gvernment prgram administratr can check criminal curt recrds at any time; therefre any prir cnvictin (r criminal charge, even if ultimately dismissed) becmes an easily detectible and a frequently permanent blemish upn an individual. Therefre, many individuals may seek t have their recrds expunged. Adult and juvenile recrds may be expunged under certain circumstances as explained belw. Limited Sealing and Expungement f Criminal Recrds KRS (5) explains the effect f the sealing r expungement f criminal recrds: 6 "After the expungement, the prceedings in the matter shall be deemed never t have ccurred. The curt and ther agencies shall reply t any inquiry that n recrd exists n the matter. The persn whse recrd is expunged shall nt have t disclse the fact f the recrd r any matter relating theret n an applicatin fr emplyment, credit, r ther type f applicatin." In Kentucky, criminal recrds can nly be sealed r expunged under limited circumstances: Under KRS 218A a persn charged with Pssessin f a Cntrlled Substance, First r Secnd Offense, can have his r her charges dismissed and have the recrds f the case sealed if he r she successfully cmpletes a deferred prsecutin prgram. Under KRS recrds in criminal cases may be sealed fr cases invlving misdemeanrs and vilatins if the defendant was fund nt guilty r if the charges were dismissed with prejudice. Under KRS expungement f the recrds in sex ffense cases is pssible upn a verdict f nt guilty r the dismissal f the charges with prejudice when the accuser in the case is the spuse. Nne f these statutes apply t cases which resulted in a cnvictin. The nly statutes which prvide fr the expungement f cnvictins in criminal cases are the fllwing: Under KRS 218A.275 a persn charged with Pssessin f a Cntrlled Substance, Secnd, r Third Degree, if the charge is a first ffense, can have his r her cnvictin set aside and have the recrds f the case sealed if he r she successfully cmpletes ne year f drug treatment. 6 The Kentucky Revised Statutes use the terms "seal" and "expunge" interchangeably. Expunged infrmatin is nt subject t pen recrds requests. KRS (5). 12

21 Under KRS 218A.276 the same result may ccur fr a persn charged with pssessin f marijuana, synthetic drugs, r salvia if he r she successfully cmpletes ninety days f treatment. 7 Under KRS misdemeanr and vilatin recrds f cnvictin may be expunged if: the request is filed five years after the end f the persn's sentence r prbatin, the ffense was nt a sex ffense r cmmitted against a child, the persn had n previus felny cnvictin, the persn had nt been cnvicted f anther misdemeanr r vilatin in the five years befre the cnvictin at issue, the persn had nt been cnvicted f a felny, misdemeanr r vilatin in the five years since the cnvictin at issue, n new charges are pending, and the ffense was an ffense against the Cmmnwealth f Kentucky. Kentucky currently has n mechanism t expunge felny cnvictins. Kentucky has n mechanism t allw felny cnvictins t expire autmatically. A persn whse DNA prfile has been cllected and has been included in the data bank may request remval f his r her prfile frm the database n the grunds that his r her cnvictin r adjudicatin has been dismissed r that he r she has successfully cmpleted a felny diversin prgram under KRS KRS Juvenile Curt Recrds Under KRS juvenile curt recrds may be expunged except fr any adjudicatins invlving guilt f an ffense which wuld have been a felny if the ffense was cmmitted by an adult. 3. Emplyment Emplyment cnsequences f a criminal cnvictin can take many frms. The different types f pssible cnsequences are: reprting requirements which blige ne cnvicted f a crime t prvide infrmatin f criminal cnvictins t a ptential emplyer, mandatry criminal recrds checks prir t accepting an applicatin, discretinary disqualificatin frm emplyment when the statute says the applicant "may" be denied emplyment, mandatry disqualificatin when the statute says yu cannt wrk in a certain ccupatin with certain types f cnvictin n ne's recrd, disciplinary prvisins fr thse already emplyed in certain ccupatins, which may als be either mandatry r discretinary. 7 The federal crllary prvisin is 18 U.S.C. 3607, which prvides fr expungement f pssessin f marijuana charges upn successful cmpletin f ne year f diversin. 13

22 The types f ffenses which may trigger cnsequences als vary frm statute t statute and jb t jb. There culd cnsequences fr cnvictin f: any felny at all drug ffenses sex ffenses vilent ffenses crimes f mral turpitude ffenses related t a specific ccupatin hate crimes any criminal charge r cnvictin except a vilatin Appendix I cntains a list f individual prfessins fr which a criminal cnvictin (r in sme cases a criminal charge) can have adverse effects fr emplyment under Kentucky statutes and regulatins. The infrmatin in this chapter is bradly applicable t Kentucky emplyers and emplyees. Critical Emplyment Areas Gvernment Licenses, Certificates, Registratins, and Cntracts As a general rule, if a jb requires any type f gvernment-issued license, certificate, registratin, permit, r cntract, a criminal cnvictin culd have adverse emplyment cnsequences. Vulnerable Peple and Psitins f Trust As a general rule, the greater the extent t which a jb invlves wrking with vulnerable ppulatins (i.e. students, the mentally ill, children, senirs, etc.), the greater the extent t which a criminal cnvictin may curtail emplyment pssibilities. Als as a general rule, the greater the extent t which a jb invlves a psitin f trust r respnsibility (i.e. financial respnsibility, respnsibility fr the wellbeing f anther, cntact with the public, etc.), the greater the extent t which a criminal cnvictin may curtail emplyment pssibilities. Guilty and N Cntest Pleas When evaluating a criminal ffense, the entities that regulate mst f the prfessins listed in Appendix I treat a guilty plea r a plea f n cntest the same way that they treat a cnvictin fllwing trial by any curt f cmpetent jurisdictin. The Effect f Out-f-State and Federal Cnvictins Many f the statutes regulating prfessins listed in Appendix I specify that ut f-state r federal cnvictins cunt against an applicant r licensee in the same way as a Kentucky cnvictin; hwever, many thers d nt specifically include these cnvictins. States differ in their classificatins f crimes and disqualifying cnvictins. Sme Kentucky penalty statutes apply nly t persns cnvicted f a felny in this state. 14

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