AB-2138: CA Professional License Criminal Record Changes

Published On: June 10, 2020By

Analysis of AB-2138: CA Professional license criminal record changes, effective July 1, 2020

AB-2138 (Chiu, Chapter 995, Statutes of 2018) Licensing boards: denial of application: revocation or suspension of licensure: criminal conviction.

Written by Tsion Chudnovsky

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California is making it easier for people with a criminal record to obtain occupational and professional licenses effective July 1, 2020. State legislators passed Assembly Bill 2138 in 2018 with the goal of reducing barriers to obtaining professional licenses, expanding opportunities for those with conviction records, reducing recidivism rates and increasing the transparency and predictability of licensure behavior.

AB-2138 restricts the discretion and licensure criteria of 37 licensing boards within the Department of Consumer Affairs for denying, suspending or revoking licensure due to criminal convictions or alleged misconduct. Only 3 occupational boards are excluded from the reforms.

Background statistics:

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Contents

Frequently asked questions:

  1. Why is California making the licensing changes in AB-2138?
  2. What are your thoughts about AB-2138?
  3. What are the new restrictions on licensing boards and how are they different? 
  4. Which convictions are exempt from the 7 year look back limit in AB-2138?
  5. What is a ‘substantially related’ criminal conviction?
  6. Which 37 licensing boards are affected by AB-2138?
  7. Which 3 licensing boards are excluded from AB-2138 reforms?

External resources:

Media inquiries


Frequently asked questions


Tsion Chudnovsky Criminal and Professional License Defense Attorney Chudnovsky Law

Q & A with attorney Tsion Chudnovsky

Common questions about AB-2138 answered by Tsion Chudnovsky, the founder of Chudnovsky Law. Chudnovsky Law is a legal authority in criminal defense and professional licensing laws and their complex intersection. You can read about the firm’s licensure practice at:

1. Why is California making the licensing changes in AB-2138?

Chudnovsky: “The three years following release from prison is the period in which ex-prisoners are most vulnerable to re-offending. Being able to earn an honest living is one of the most successful ways to keep people with a criminal record from re-offending.

In recent decades, the right to earn an honest living has increasingly been hindered by occupational licensing laws and a growing licensure bureaucracy. Government imposed barriers have been a major challenge for ex-prisoners trying to re-enter the workforce. Qualified people can have licenses denied, suspended or revoked due to prior arrests or convictions which are old, unrelated to the profession, or have been judicially dismissed.

The United States incarcerates its citizens more than any other country in the world. Data from the Equal Justice Initiative highlights the scale of the challenge we are facing as a nation:

  • The U.S. has 5% of the world’s population, but ~25% of its incarcerated population.
  • We spent $87 billion in 2015 on jails and prisons.
  • 2.2 million people are incarcerated today vs. only 200,000 in 1972.
  • The number of women in jails and prisons has grown 750% from 1980 to 2017

Momentum from criminal justice reform efforts across the U.S. has focused legislators and researchers on finding solutions to reducing recidivism and the burden incarceration places on society and government budgets. Successfully reintegrating ex-prisoners back into the workforce is a crucial component to criminal justice reform.

A landmark study by Steven Slivinski, Senior Research Fellow, Center for the Study of Economic Liberty, found a direct correlation between occupational licensing burdens and recidivism rates:

‘…between 1997 and 2007 the states with the heaviest occupational licensing burdens saw an average increase in the three-year, new-crime recidivism rate of over 9%. Conversely, the states that had the lowest burdens and no such character provisions saw an average decline in that recidivism rate of nearly 2.5%’.

An urgent need to solve California’s criminal justice challenges, chronic jail overcrowding, new research and constituency lobbying motivated California legislators to pass these reforms in 2018. Implementation was delayed until July 1, 2020 to allow licensing agencies time to develop procedures to comply with the new laws”.


2. What are your thoughts about AB-2138?

Chudnovsky: “AB-2138 is a substantial step forward for the state of California. In the past, many licensure applicants have been barred or denied due to old and/or irrelevant criminal records. Board licensure decisions have often been made in an opaque, inconsistent process that can be very frustrating for those trying to decide whether to make the substantial time, education and financial investments required to be eligible to apply for licensure.

Studies have shown that states with more fair, consistent and transparent occupation licensure systems have significantly lower recidivism rates. Given that around 30 percent of all jobs in California are subject to an oversight agency or board, these reforms should help many more Californians integrate back into society and obtain stable, high quality jobs.

Having more qualified workers can help boost the economy, increase competition and lower the costs of services and many types of workers. Lowering crime rates also reduces the burden on society from costs caused by incarceration, criminal activity and broken families.”


3. What are the new restrictions on licensing boards and how are they different?

Chudnovsky: “California licensing agencies are responsible for issuing new licenses and enforcing the regulations governing licensees with the goal of protecting the health and safety of consumers.

Prior to AB 2138, licensing boards have had broad discretion to deny, suspend and revoke licensure based upon criminal convictions, or any ‘act involving dishonesty, fraud, or deceit’ for self-benefit or harm to others, whether it ended in conviction or not.

Beginning July 1, 2020, AB 2138 restricts the discretion and practices of licensing agencies within the Department of Consumer Affairs (DCA) in several important ways: 

  1. Criminal convictions older than seven years may not be the basis for licensure denial, subject to some exceptions.
  2. DCA boards cannot use prior acts involving dishonesty, fraud, or deceit as a basis for denying licensure if the act did not end in a criminal conviction or a formal discipline on their record. Other case dispositions, such as arrests, infractions, juvenile adjudication and citations cannot be a basis for denial.
  3. A criminal conviction must be ‘substantially related’ to the qualifications or duties required by the license or profession in order to be a basis to deny, revoke, or suspend a license.
  4. Licensing boards must consider rehabilitation evidence when evaluating any conviction, not just misdemeanors. A licensure application may not be denied because of a conviction if the applicant was granted clemency or a pardon, made a showing of rehabilitation for a felony conviction, or if the conviction was dismissed, set aside or expunged per 1203.42 pc.
  5. In order to deny a license due to a formal professional discipline record, the misconduct must have been cause for discipline by the board making the licensure decision, and be ‘substantially related to the qualifications, functions, or duties of the business or profession for which the present application is made….’
  6. Licensing boards may no longer require that applicants self-disclose prior convictions unless the license type does not require Livescan fingerprint background checks.
  7. Licensing boards must now track licensure denial data, publish the data on their websites and provide a report annually to the state Legislature. The data must include the number of applications received, who was denied a license, whether the application provided mitigating evidence, and whether the disqualification or denial was appealed.”

4. What types of convictions are exempt from 7 year look back limit in AB-2138?

Chudnovsky: “DCA licensing boards can still consider the following types of convictions as a basis for license application denial, even when they are more than 7 years old:

  1. ‘Serious felonies’ also known as ‘Strike offenses’ defined in 1192.7 pc.
  2. Convictions requiring sex offender registration per 290(d)(2) pc or 290(d)(3) pc.
  3. For certain licenses, financial crimes ‘directly and adversely’ related to certain occupations.

The new legislation does not impose any time limits for considering convictions for the purposes of suspending or revoking licenses.”


Chudnovsky: “AB-2138 requires that each board must develop criteria to aid it when deciding whether a crime is ‘substantially related’ to the functions, qualifications or duties of the business or profession it regulates. It is believed that each board will publish their criteria in some form to allow for more transparency and predictability of each board’s denial, suspension or revocation decisions.

The law requires that the criteria each board develops includes:

  1. The nature and gravity of the offense.
  2. The number of years elapsed since the date of the offense.
  3. The nature and duties of the profession in which the applicant seeks licensure or in which the licensee is licensed.

The law does not enforce a single standard of ‘substantially related’ across all DCA licensing agencies. Instead, licensing boards are directed to develop criteria relevant to their profession. Our hope is that the criteria are fair and transparent. The prior process was often opaque and unfair to those with a criminal record trying to make major life decisions about which careers to pursue, how to become productive members of society, and how to provide for their families.


6. Which licensing boards are affected by AB-2138?

Chudnovsky: “The reforms enacted in AB-2138 apply to all Department of Consumer Affairs professional licensing boards, with only 3 exceptions. The full list of the 37 boards affected:

  1. Accountancy, Board of
  2. Acupuncture Board
  3. Arbitration Certification Program
  4. Architects Board, California
  5. Automotive Repair, Bureau of
  6. Barbering and Cosmetology, Board of
  7. Behavioral Sciences, Board of
  8. Cannabis Control, Bureau of
  9. Cemetery and Funeral Bureau
  10. Chiropractic Examiners, Board of
  11. Contractors State License Board
  12. Court Reporters Board
  13. Dental Board of California
  14. Dental Hygiene Board of California
  15. Engineers, Land Surveyors, and Geologists, Board for Professional
  16. Guide Dogs for the Blind, State Board of
  17. Household Goods and Services, Bureau of
  18. Landscape Architects Technical Committee
  19. Medical Board of California
  20. Naturopathic Medicine Committee
  21. Occupational Therapy, California Board of
  22. Optometry, Board of
  23. Osteopathic Medical Board of California
  24. Pharmacy, Board of
  25. Physical Therapy Board of California
  26. Physician Assistant Board
  27. Podiatric Medical Board of California
  28. Professional Fiduciaries Bureau
  29. Psychology, Board of
  30. Real Estate Appraisers, Bureau of
  31. Registered Nursing, Board of
  32. Respiratory Care Board
  33. Security and Investigative Services, Bureau of
  34. Speech-Language Pathology and Audiology and Hearing Aid Dispensers Board
  35. Structural Pest Control Board
  36. Veterinary Medical Board
  37. Vocational Nursing and Psychiatric Technicians, Board of”

7. Which licensing boards are excluded from AB-2138 reforms?

Chudnovsky: “Only 3 boards are exempted from the reforms in AB-2138:

  1. The Bureau for Private Postsecondary Education.
  2. The California Horse Racing Board.
  3. The State Athletic Commission.”

About Chudnovsky Law

Chudnovsky Law is an award-winning California criminal defense and professional license defense law firm. The firm’s three senior defense attorneys Tsion Chudnovsky, Robert Weinberg and Suzanne Crouts have a combined 65+ years experience practicing law.

Attorney Robert K. Weinberg manages the firm’s professional license defense practice. He is a former prosecutor with more than 30 years of experience handling professional license defense, federal, DEA and state criminal defense matters. He has handled over 5,000 cases and jury trials.

Robert is an authority in the complex intersection of licensing and criminal law for medical, nursing, chiropractic, healthcare corporations and all professional licensees.

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Media inquiries

For media inquiries or interview requests, please contact:

Tsion Chudnovsky
Chudnovsky Law
23 Corporate Plaza Dr, Suite 150
Newport Beach, CA 92660
(949) 750-2500

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Note: This update is being provided to our clients, media, business associates and professional licensees for informational purposes only. No warranty is made as to it’s accuracy. Legal advice should be based on your specific situation and provided by a qualified attorney. Contact us to speak with a lawyer about your case.

  1. J June 13, 2020 at 1:25 am - Reply

    What about a real estate license? After 2 DUI’s that are over 13 years old?

    • Tsion Chudnovsky June 13, 2020 at 2:52 am - Reply

      Hi J, The California Department of Real Estate (DRE) is a separate agency, not under the Department of Consumer Affairs (DCA). The new licensing board reforms in AB-2138 only apply to DCA agencies, not the DRE.

      The DRE considers each applicant based on the facts around your DUI and whether there were mitigating factors. You are required to be truthful on your license application, or that can be cause for licensure denial. Typically an old DUI would not be a bar unless there are certain aggravating factors. You can contact us for a consultation to review your situation.

  2. C.J. June 14, 2020 at 10:39 pm - Reply

    With this new upcoming law, If a medical doctor applies for a license but has more than one DUI, can the board legally offer the doctor a probationary license instead of an unrestricted license?

    • Cj June 15, 2020 at 7:52 am - Reply

      To clarify, the DUIs are more than 7 years old and dismissed pursuant to v.c. 1204

      • Tsion Chudnovsky June 15, 2020 at 5:56 pm - Reply

        Hi CJ, The Medical Board of California (MBC) has historically been known to investigate and discipline physicians for multiple DUIs, typically based on the argument that DUI is “substantially related to the profession” and multiple DUIs can indicate a substance abuse issue. Multiple DUI convictions have been a significant obstacle for obtaining an unrestricted new license.

        AB-2138 prohibits misdemeanor DUI convictions older than 7 years from being the basis for licensure denial. So assuming there are no other issues with your licensure eligibility, it appears MBC should not deny your licensure application for these convictions after July 1, 2020.

        You raise an interesting question though. AB-2138 does not impose time limits for suspending or revoking licenses due to past convictions. So how does that affect your desire for a new, unrestricted license with old DUI convictions? We would need to research that with the MBC to get a definitive answer as I have not seen any published guidance on that issue yet. Since the law is not yet effective, we have not handled your scenario yet. The boards are working out many of the details of implementation. If you’d like us to research this for you, give me a call.

  3. ANNA July 13, 2020 at 3:46 pm - Reply

    In this article it states that new applicants and licensees are affected by this legislation. What about a registered nurse being currently punished via the BRN probation for offenses that that are 14 and 11 years old. Respectively, one offense was a misdemeanor DUI and one was a drug use issue with no legal intervention. The board is stating that this reform only applies to those who are new applicants and NOT current licensees. Is this true?

    • Tsion Chudnovsky July 17, 2020 at 7:36 pm - Reply

      Hi Anna, AB-2138 does not impose any time look back limitation on the Board of Registered Nursing for considering prior convictions for license suspension or revocation. The 7 year look back limit applies to new license applications.

      If you are currently subject to penalties or strict probation terms for some old offense, you may be eligible to file a petition for modification of penalties or early termination of probation. Our nursing license defense attorneys are experienced at handling these petitions for relief. If you’d like to review the process and your eligibility for relief, give us a call.