Become airline pilot with expunged record?

T

Thecunningone

Guest
hello everyone,

I am 29 years old and when I was 19 I had an unfortunate event in which I was charged with theft. It was a stupid thing in which I took my neighbors horse trailer to carry my dirt bikes for the day and they found out and reported it stolen and pressed charges. Anyway, I was clearly immature then, and I had to plead guilty to theft to receive a diversion of no punishment. Years went by and when I got a job at a hospital the background check came back showing the conviction, which then prompted me to get it expunged. So, now i have made sure it is COMPLETELY off my state record and the FBI record and I have double checked with a finger print background check from the FBI and TBI. I was accepted into nursing school as well which requires a full fbi fingerprint background check too. So it definitely seems to be gone.

So, my question is: is it plausible to become an airline pilot with this and do you foresee this giving me any issues down the road?
 
The question n the 8500-8, which is an AFFADAVIT, is not "is there record of" there always is, this is a hard drive society), it is have you ever in your life.

Lie at your own peril.
FAA's view is there is no place for a liar on any flight deck.

My advice: it it's been ten years, get it vetted. Then move on. You will look over your shoulder forever if you do not- and falsification of the record is a felony which will affect your nursing license, as IT SHOULD. I do not want you in my hospital.

"Check out 4 delta pilots indicted" and see how lying is working out for them....and now you propose to compound what you say was stupid and renew the stupidity with a felony.

WOW.
 
bbchien said:
The question n the 8500-8, which is an AFFADAVIT, is not "is there record of" there always is, this is a hard drive society), it is have you ever in your life.

Lie at your own peril.
FAA's view is there is no place for a liar on any flight deck.

My advice: it it's been ten years, get it vetted. Then move on. You will look over your shoulder forever if you do not- and falsification of the record is a felony which will affect your nursing license, as IT SHOULD. I do not want you in my hospital.

"Check out 4 delta pilots indicted" and see how lying is working out for them....and now you propose to compound what you say was stupid and renew the stupidity with a felony.

WOW.
Click to expand...
I would give the OP the benefit of the doubt. Since he didn’t say he was already a pilot, how would he know the verbiage of the 8500-8? Maybe he’s at the gathering information stage.
 
If he's at the gathering info stage then info he got. Don't lie on official Federal forms. Pretty good advice right there. If you have to lie on the Medexpress form to get into the cockpit, you don't belong in the cockpit.
 
steingar said:
If he's at the gathering info stage then info he got. Don't lie on official Federal forms. Pretty good advice right there. If you have to lie on the Medexpress form to get into the cockpit, you don't belong in the cockpit.
Click to expand...
No disagreement, but I don’t see the intent to falsify that Bruce appears to see.
 
What is the purpose or point of expunging someone's record if they are still required to list the conviction on federal forms? Doesn't seem very expunged if that's the case.
 
I at no point in my post posed the intention to lie. Yes I am at the gathering information stage, I was asking if that would affect me and make me ineligible. I would fully intend NOT to lie at all. But how does that work and will they still hire pilots like that?
 
I can tell you, there are pilots out there working for the big airlines that have criminal records. Nothing like murder, but they do have jobs.
 
Thecunningone said:
So, my question is: is it plausible to become an airline pilot with this and do you foresee this giving me any issues down the road?
Click to expand...

Yes.
No.

Fill out your federal and employment questionnaires truthfully as asked, go through the gauntlets as needed (especially the FAA ones that may result from a truthful response), fly safe.
 
You'd probably have no issue getting hired at a commuter, but getting to a major airline would be a challenge.
 
Actually I am wondering about the legal issues with this. My understanding of a true expungement, which is available in some states, is that you never have to answer yes that you have an arrest or conviction, not even under oath.

For the OP, it may be best to check with an attorney in your state and perhaps an aviation attorney there before filling out any forms.
 
PeterNSteinmetz said:
Actually I am wondering about the legal issues with this. My understanding of a true expungement, which is available in some states, is that you never have to answer yes that you have an arrest or conviction, not even under oath.

For the OP, it may be best to check with an attorney in your state and perhaps an aviation attorney there before filling out any forms.
Click to expand...
The last line is the best advice.

For many Federal purposes - and for immigration/customs purposes in the US and many other countries - you have to disclose without regard to expungement. Expungement seals the records - they can still be obtained under certain circumstances.
 
wsuffa said:
For many Federal purposes - and for immigration/customs purposes in the US and many other countries - you have to disclose without regard to expungement.
Click to expand...

Now I am even more curious. I can see how they might get away with this for immigration. But for US citizens it seems one might be able to make a due process argument against a person with a true expungement having to disclose.

It appears that specific government agencies can demand such disclosure if that is specifically authorized by law.

I would be very interested to hear the case law on this. A quick google search did not show an answer regarding the FAA.

Probably needs an aviation attorney to search for any precedents.
 
PeterNSteinmetz said:
Now I am even more curious. I can see how they might get away with this for immigration. But for US citizens it seems one might be able to make a due process argument against a person with a true expungement having to disclose.

It appears that specific government agencies can demand such disclosure if that is specifically authorized by law.

I would be very interested to hear the case law on this. A quick google search did not show an answer regarding the FAA.

Probably needs an aviation attorney to search for any precedents.
Click to expand...
I'm not an attorney, but my understanding of the situation is as follows: Expungement in a state's legal system is a state action, not a federal action. My guess is that what lets the feds "get away with" not not being bound by state expungement is that state laws cannot interfere with enforcement of federal laws and regulations. I suspect that the supremacy clause of the U.S. Constitution has something to do with that. So when a federal agency creates a regulation that requires disclosure of something, a state cannot countermand that.
 
bbchien said:
The question n the 8500-8, which is an AFFADAVIT, is not "is there record of" there always is, this is a hard drive society), it is have you ever in your life.

Lie at your own peril.
FAA's view is there is no place for a liar on any flight deck.

My advice: it it's been ten years, get it vetted. Then move on. You will look over your shoulder forever if you do not- and falsification of the record is a felony which will affect your nursing license, as IT SHOULD. I do not want you in my hospital.

"Check out 4 delta pilots indicted" and see how lying is working out for them....and now you propose to compound what you say was stupid and renew the stupidity with a felony.

WOW.
Click to expand...

I have heard that sometimes people do not understand a simple question on the 8500-8 and answer incorrectly. You just proved that point that some people don’t understand simple questions because the question was can he become an airplane pilot. The answer is yes. Conviction or not.

Your precious form asks about convictions. A diversion program in the criminal justice system is a form of sentence in which the criminal offender accepts responsibility (pleads guilty), joins a rehabilitation program, which will help remedy the behavior leading to the original arrest, allow the offender to avoid conviction and, in some jurisdictions, hide a criminal record.

If one successfully completes a diversion program, the case is dismissed, they have not been convicted of anything and the records will clearly indicate he was never convicted.

He will have no problem becoming an airline pilot.
 
Last edited:
Palmpilot said:
I'm not an attorney, but my understanding of the situation is as follows: Expungement in a state's legal system is a state action, not a federal action. My guess is that what lets the feds "get away with" not not being bound by state expungement is that state laws cannot interfere with enforcement of federal laws and regulations. I suspect that the supremacy clause of the U.S. Constitution has something to do with that. So when a federal agency creates a regulation that requires disclosure of something, a state cannot countermand that.
Click to expand...

In general true about the supremacy clause, though I think there might be some arguments about due process that would be possible, if that is the interpretation of the FAA. I was not able to quickly find precedent on what their interpretation regarding expungements has been or cases where that was challenged.

As noted by @Clip4, this may be moot for the OP because he mentioned a “diversion”, which is legally distinct from a conviction.
 
Clip4 said:
If one successfully completes a diversion program, the case is dismissed, they have not been convicted of anything and the records will clearly indicate he was never convicted.
Click to expand...
Apparently the OP is unaware of that, as well.
....the background check came back showing the conviction
Click to expand...
 
PeterNSteinmetz said:
In general true about the supremacy clause, though I think there might be some arguments about due process that would be possible, if that is the interpretation of the FAA. I was not able to quickly find precedent on what their interpretation regarding expungements has been or cases where that was challenged.
Click to expand...
I just don't see how a state law or state action can prevent the federal government from enforcing its own laws and regulations.
 
Palmpilot said:
I just don't see how a state law or state action can prevent the federal government from enforcing its own laws and regulations.
Click to expand...

Right, but there are constitutional limits on what the Federal government is allowed to do. IANAL, but it strikes me that the Federal government demanding the disclosure of an expunged conviction might be argued to violate the due process afforded the convicted under the Fifth amendment.

I have not been able to find any FAA interpretation regarding this nor precedents. It may be terra incognito from a legal perspective. There might be Federal precedent regarding other criminal actions and sentencing interpretations however.
 
PeterNSteinmetz said:
Right, but there are constitutional limits on what the Federal government is allowed to do. IANAL, but it strikes me that the Federal government demanding the disclosure of an expunged conviction might be argued to violate the due process afforded the convicted under the Fifth amendment.

I have not been able to find any FAA interpretation regarding this nor precedents. It may be terra incognito from a legal perspective. There might be Federal precedent regarding other criminal actions and sentencing interpretations however.
Click to expand...
I don't know about the FAA, but some states require disclosure for professional licensing. And CBP requires disclosure for Global Entry and similar "trusted traveler" programs.

Here are a couple of websites with some info:
https://www.flyertalk.com/forum/tru...ailure-disclose-expunged-old-convictions.html
https://resources.lawinfo.com/criminal-defense/does-an-expunged-criminal-record-still-follow.html
https://blogs.findlaw.com/blotter/2012/07/when-must-you-disclose-an-expungement.html
 
Well also how does this work with canada? It’s all very confusing! Before I go this route I want to know what I’m getting into. I’d hate to get all of the way there only to be turned down by airlines because of an expunged record I had to disclose. I definitely will seek out an official legal guidance on this before I spend thousands pursuing this route. Surely there is a clear and concise answer somewhere out there.
 
Thecunningone said:
I definitely will seek out an official legal guidance on this before I spend thousands pursuing this route. Surely there is a clear and concise answer somewhere out there.
Click to expand...

I think that is a very good idea. Probably best to ask an aviation attorney who deals in aeromedical cases.

This may actually be legal terra incognito. Such an exact case may never have had a ruling and there may be no existing interpretation from the FAA.

In that case, the best you can do is pay some money to obtain an opinion letter from a qualified attorney. They can advise you on the relative risks involved in such a case, then proceed accordingly.
 
PeterNSteinmetz said:
For the OP, it may be best to check with an attorney in your state and perhaps an aviation attorney there before filling out any forms.
Click to expand...

I consider myself one of these. My advice to people is to do what Doc Bruce says when applying. Then, if you failed to do what he says and the FAA comes asking for your license back, come talk to me. You are much better off working with Bruce and doing what he says on the front end to get your certificate issued than working with me trying to keep all the certificates you have on the back end.
 
PPC1052 said:
I consider myself one of these.
Click to expand...

Aside from the OP's case, I am wondering in general about this and if you have an opinion readily.

Do you think there is an existing FAA opinion letter or a case pertaining to the situation where an applicant had charges, successfully went through a diversion, and the record was expunged? Does that applicant have to disclose that as a conviction?

What about when the applicant was convicted but it was expunged in a state that provides for complete expungement? (I know expungement on the Federal level is quite limited).
 
PeterNSteinmetz said:
Aside from the OP's case, I am wondering in general about this and if you have an opinion readily.

Do you think there is an existing FAA opinion letter or a case pertaining to the situation where an applicant had charges, successfully went through a diversion, and the record was expunged? Does that applicant have to disclose that as a conviction?

What about when the applicant was convicted but it was expunged in a state that provides for complete expungement? (I know expungement on the Federal level is quite limited).
Click to expand...

I haven't researched extensively, but there are a few reported NTSB opinions where the respondent claimed to have thought the conviction was expunged, but it had not been. In those instances, that defense didn't fly because they upheld the determination that the pilot must have known it wasn't expunged. But here is an excerpt from an NTSB decision questioning whether it would be much of a defense at all:

Moreover, we note, without deciding, that we are skeptical whether an expunged felony conviction should justify answering “no” to question 18w notwithstanding an applicant's knowledge of the underlying conviction giving rise to any expungement. Nonetheless, assuming arguendo that expungement could in some limited circumstances (depending on the terms and scope of the expungement or other deferred adjudication) exonerate an applicant on a charge of intentional falsification for answering “no” to question 18w, we think this would be in the nature of an affirmative defense that a respondent would have to prove. In other words, the exculpatory effect, if any, of an expungement would be through legal operation of the applicable terms of the expungement agreement to nullify culpability for an answer that would otherwise be factually, but not legally, incorrect. In the present case, the issue need not be addressed, as respondent's conviction has not been expunged.​

LYNNE A. OSMUS, ACTING ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, COMPLAINANT v. JEFFREY D. SPYKE, RESPONDENT, 2009 WL 423979, at *4

So, now that you have read this, you can't claim a good faith defense to intentional misrepresentation because now you know your answer would be "factually incorrect," even if "legally correct." You're welcome.
 
Thanks, that is interesting.

There is also NTSB case 8750, available here https://www.ntsb.gov/legal/alj/OnODocuments/Aviation/5750.pdf. It also brushes on this issue but does not resolve it. Basically applicant thought he might be eligible for a DUI diversion program and so answered no on the 8500-8. Apparently was not diverted so ended up having certificates suspended for intentional falsification and lost on appeal to the NTSB.

Seems like there at least two cases then where the issue of expungement has been brushed on. But none that definitely decide the matter of whether of not such allows one to answer no on the form 8300-8. Legal terra incognito. Interesting from an academic legal point of view -- not so fun to be there as an applicant or defendant.

It seems there are none that deal with the case of a diversion specifically. That is of course in most situations intended to not be a conviction or having a criminal record in the first place, as long as one completes the diversion. My understanding is that there is never a conviction entered in the court record.

Since the OP's offense was not a driving or DUI related matter, it then seems that really what was on his record was a felony arrest. But per instructions, he doesn't have to enter merely an arrest and not conviction if it is not driving or DUI.

I hope the OP has been able to get a specific opinion on his case -- and might share it here at some point.
 
Last edited:
MuseChaser said:
What is the purpose or point of expunging someone's record if they are still required to list the conviction on federal forms? Doesn't seem very expunged if that's the case.
Click to expand...
It's generally a help when filling out employment applications, and little else.
 
Well interestingly enough, it was a diversion...which should mean no conviction. However when I applied to a local hospital, it came back showing a conviction of theft. So I got it expunged. What happened was the court didn’t. Expunge it and I had to light a fire to get them to do it. So then I talked with the TBI and FBI and had it expunged permanently on both levels. I then ran a fingerprint background check for my state and with the FBI and it showed no records whatsoever. So, I think the best thing to do is go to my previous attorney and figure out what actually happened. I was young so I’m having trouble remembering the details of the case
 
Okay, so I contacted my attorney on this one. Date original case was filed was 2010. Apparently the final disposition was in 2011. The charges were dropped to Theft of property 500-1000$ and the final disposition states "judicial diversion." Then it was confirmed expunged. This is all the information my attorney has. Does anybody have any advice on this one?
 
PeterNSteinmetz said:
Right, but there are constitutional limits on what the Federal government is allowed to do. IANAL, but it strikes me that the Federal government demanding the disclosure of an expunged conviction might be argued to violate the due process afforded the convicted under the Fifth amendment.

I have not been able to find any FAA interpretation regarding this nor precedents. It may be terra incognito from a legal perspective. There might be Federal precedent regarding other criminal actions and sentencing interpretations however.
Click to expand...



I did read that in Tennessee in 2014, it was ruled that if you complete a diversion program it is not legally specified as a "conviction," however that is only in the state of TN as far as I am concerned, and my diversion was in 2010.
 
PeterNSteinmetz said:
Right, but there are constitutional limits on what the Federal government is allowed to do. IANAL, but it strikes me that the Federal government demanding the disclosure of an expunged conviction might be argued to violate the due process afforded the convicted under the Fifth amendment.
Click to expand...
In what way, specifically?
 
Thecunningone said:
Well also how does this work with canada? It’s all very confusing! Before I go this route I want to know what I’m getting into. I’d hate to get all of the way there only to be turned down by airlines because of an expunged record I had to disclose. I definitely will seek out an official legal guidance on this before I spend thousands pursuing this route. Surely there is a clear and concise answer somewhere out there.
Click to expand...
The airline itself can ask for whatever it wants. They can ask if you clip your nails every two weeks if they want to.
 
Go run your file and see what shows up

https://www.fbi.gov/services/information-management/foipa/requesting-fbi-records

Maybe also ask around who they run background checks through.

Misdemeanor or felony charge?

I don’t think any 121/135/91/91k operations run a NCIC check which would show the arrest and deposition and will never go away. Depending on who’s on the HR table, I doubt many would really care what you did as a teen when it comes to something like the above, especially in this hiring climate.
 
mryan75 said:
The airline itself can ask for whatever it wants. They can ask if you clip your nails every two weeks if they want to.
Click to expand...

I believe the in the US that is true, so long as they don't ask the prohibited questions about protected classes, such as religion, race, etc. In many states, there is also a legal prohibition against them making a hiring decision based on expunged records.
 
Last edited:
thecunningone said:
Okay, so I contacted my attorney on this one. Date original case was filed was 2010. Apparently the final disposition was in 2011. The charges were dropped to Theft of property 500-1000$ and the final disposition states "judicial diversion." Then it was confirmed expunged. This is all the information my attorney has. Does anybody have any advice on this one?
Click to expand...

Lot of additional information here and additional questions that have arisen. If the theft of property $500-1000 was a misdemeanor, then I think you are done. The 8500-8 asks about felony convictions. Recheck with your original attorney on that one. (EDIT - guessing here, but if the conviction was in TN, $500-$1000 appears to be the lowest level of felony conviction https://www.criminaldefenselawyer.c...lties/petty-theft-tennessee-penalties-defense) .

If that amount is a felony in the jurisdiction where you received the diversion, I think you are in less known legal territory. My impression, but IANAL, is that you can omit a true diversion if it was not entered on your court record as a conviction, but what you say above make it appear there was a conviction entered on the record.

In my and @PPC1052 's posts above, we have noted some of the cases that touch about these issues. It does not appear to have ever been clearly adjudicated.

So as to what to do, I would first gather all the records you can, then talk with an aviation attorney about it. They can advise you on the relative risks here. I suspect you will have to choose between A) obtaining an opinion letter from an aviation attorney stating that per their reading of the laws and regulations you can omit this in your application, or B) applying with the help of an experienced senior AME and trying to clear it up front through the FAA (it sounds like it should be clearable).

Tradeoffs will be:

Option A is somewhat quicker to start with and likely a little bit cheaper, but leaves you with an unknown legal risk and a potential really big delay and expense down the line. The opinion letter provides you with a sort of proof of good faith, might be an argument for a defense of not intentionally misrepresenting a fact on the form in the minds of the FAA, but does not completely clear you. If such a case went all the way to the Federal appeals court (maybe the NTSB would see the argument that a diversion and expunged record doesn't count, but I doubt the FAA itself would see it that way), it could cost more than $100k to pursue and would take years.

Option B will take a bit longer, perhaps 6 months, to start with and cost perhaps $5000. Once you have it cleared on the FAA record you are very unlikely to face serious legal action in the future, though it is on the record for future employers to see.

Personally, I would not make such a choice without the input of a good aviation attorney.
 
Last edited:
mryan75 said:
In what way, specifically?
Click to expand...

Well, IANAL, so just speculating here. Perhaps one could argue that the state expungement was the provision of due process to the defendant. By trying to override that and make decisions based on an expunged record, the Federal government would be denying that due process to the defendant, in violation of the guarantee of that in the 5th amendment.

As I mentioned in a post above, there may be related existing case law on this with regard to sentencing. Sometimes Federal sentencing guidelines take into account prior state convictions. I bet there has been a case where a defendant wanted a lower sentence and argued for it based on their prior state record being expunged. EDIT: per the US Sentencing Commission, expunged convictions do not count. A diversion with an admission of guilt does, while a diversion with deferred prosecution does not. https://www.ussc.gov/guidelines/2018-guidelines-manual/2018-chapter-4.

As myself and @PPC1052 noted above, there appear to be no existing FAA interpretations or NTSB decisions which deal explicitly with this issue. That means if it arose and the defendant really wanted to fight it, it would likely need to go all the way to the appellate court to make such a constitutional argument. The NTSB, as an administrative hearing, does not deal with those. In the Federal system, to do that, you would have to first raise that issue in the FAA hearing, preserve it through the NTSB hearing, then finally get it in front of the appeals court. It would be a very long and expensive process. Though it does strike me as a potentially interesting legal issue in an academic sort of way.
 
Last edited:
I guess I should mention, and what will potentially hurt me...is before the record was expunged I traveled to Canada on leisure and got stopped at the border because my record was showing Felony theft. They brought me inside the customs and took my picture/finger printed me and then allowed me to enter. At the same time, I applied to the hospital I currently work at and their background check also showed a felony. This prompted me to get the records expunged. Again, I followed up with my state gov. as well as FBI and did the finger print check and it all came back clear. However, I think since this showed up before a was "pinged" in the system, during an airline background check I have a feeling even if the FBI comes back clear at some point I will have an issue with Canada showing it still, or potentially finding out somehow. I was able to get into nursing school/state license with my clear record but I imagine FAA and airlines are different. So, I suppose I should go for an AME and just disclose/check yes and then wait for the results and hope I obtain the medical. Do you think if I disclose in the beginning this will affect me? I understand that airlines run a 10 year FBI background check...well, by the time I am at the airlines it will be over 10 years so at that point can I legally declare no? It is interesting, but I think being explaining myself now is better than hoping they don't find something.


So many folks have mentioned the FBI check WILL find something, many people say the FBI shows expungements etc, but again my fingerprint check came back in the clear...so I don't exactly know what to do. I don't start flight school until February so maybe I should go have my medical now and just admit to it and see if I can get it taken care of?
 
I think that increases the odds of the expunged record being detected, so I would not answer no on the basis of that expungement without having consulted with an aviation attorney and obtained a opinion letter. It does sound though like you can be issued a certificate after disclosing, it will just take a few months. You don't need a medical certificate until solo in any case.

Along with several other here, I would suggest consulting an aviation attorney. That will cost you a bit of money up front, but then you will have a much better understanding of the options. You can probably get a verbal consult in a few days and an opinion letter within a few weeks.
 
Old Thread: Hello . There have been no replies in this thread for 365 days.
Content in this thread may no longer be relevant.
Perhaps it would be better to start a new thread instead.
Back
Top