Medical and expunged record

Discussion in 'Medical Topics' started by Traci Strickland, Jan 9, 2019.

  1. Traci Strickland

    Traci Strickland Filing Flight Plan

    Joined:
    Jan 9, 2019
    Messages:
    1
    Display Name:

    Display name:
    traci
    if you have an expunged record (possession of marijuana, possession of narcotics and possession of alcohol under age) and applying for medical for PPL, what are the chances of getting approval? Attorney said because of expungement legally can answer no to all questions regarding arrest, but nervous about doing that .
     
  2. lbfjrmd

    lbfjrmd Pre-takeoff checklist

    Joined:
    Nov 13, 2015
    Messages:
    396
    Location:
    pensacola
    Display Name:

    Display name:
    FAA HIMS/AME/ATC flight doc
    if u were arrested - you report
     
  3. rk911

    rk911 Line Up and Wait PoA Supporter

    Joined:
    Apr 26, 2015
    Messages:
    560
    Location:
    Wheaton IL
    Display Name:

    Display name:
    rk911
    Last edited: Jan 9, 2019
  4. Tracis

    Tracis Guest

    I agree and we are trying to find an attorney familiar with FAA. Just wondering if telling the truth ruins his chances
     
  5. catmandu

    catmandu Cleared for Takeoff

    Joined:
    Aug 14, 2008
    Messages:
    1,128
    Location:
    Maryland's Eastern Shore
    Display Name:

    Display name:
    Catmandu
    Wait, I thought 'arrested, declare' only applied to 18v, which pertains to driving. I thought 18w covers non-driving, and that is 'convicted, declare'?
     
  6. Clip4

    Clip4 En-Route

    Joined:
    Jun 27, 2013
    Messages:
    3,720
    Location:
    A Rubber Room
    Display Name:

    Display name:
    Cli4ord
    Assuming it is an expungement and not a sealing of the record. No court record = no conviction.
     
  7. bbchien

    bbchien Touchdown! Greaser!

    Joined:
    Feb 13, 2005
    Messages:
    10,390
    Location:
    Bolingbrook, IL
    Display Name:

    Display name:
    Bruce C
    Expungement is a state court notion. The FEDS never expunge anything. They can find it. I'll bet that attorney does NOT practice in Federal Court.

    the question on the application does NOT say, "Is there record of". It sez, "have you ever in your life..." and LYING is not a long term strategy with uncle sam.

    Lie at your own risk. Eventually, Lose everything. jus tlike the 4 Delta captains who were indicted for repetitively lying, about VAH benefits..
     
    MikeELP, bflynn and TCABM like this.
  8. Clip4

    Clip4 En-Route

    Joined:
    Jun 27, 2013
    Messages:
    3,720
    Location:
    A Rubber Room
    Display Name:

    Display name:
    Cli4ord
    In most states, the only official record resides in the court of record. The court destroys the records and orders the law enforcement agency to destroy all reports and forbids officers of speaking about the case. If the conviction has been expunged, everything else is heresay.

    Not only that, it would be impossible for an applicant to produce any documents requested by the FAA. They don’t exist.
     
    Last edited: Jan 9, 2019
  9. bbchien

    bbchien Touchdown! Greaser!

    Joined:
    Feb 13, 2005
    Messages:
    10,390
    Location:
    Bolingbrook, IL
    Display Name:

    Display name:
    Bruce C
    So your advise is to lie on an affidavit?
    How about report, get evaluated, get issued?
    If there are no documents, there are no documents. But they are on the hard drive of a record collector someplace and the will bite You in the derriere, eventually....

    Do you think the public records services delete old data? Really now.....
     
  10. PaulMillner

    PaulMillner Pre-takeoff checklist

    Joined:
    Jan 14, 2011
    Messages:
    336
    Location:
    Berkeley, CA
    Display Name:

    Display name:
    Paul Millner
    My niece’s expungement is an order signed by the judge stating that they event never occurred... so if she reports that it did happen, she’s lying under oath?

    Paul
     
  11. Clip4

    Clip4 En-Route

    Joined:
    Jun 27, 2013
    Messages:
    3,720
    Location:
    A Rubber Room
    Display Name:

    Display name:
    Cli4ord
    No, my advice is to tell you to follow the law in the state in which you where convicted and the legal process in place to absolve a person of the conviction. The OP is still on the hook to report the substance abuse.

    To do so otherwise defeats the purpose of an expungement and reinstates the conviction as an official record.
     
  12. midlifeflyer

    midlifeflyer Final Approach

    Joined:
    May 25, 2006
    Messages:
    9,318
    Location:
    Chapel Hill NC
    Display Name:

    Display name:
    Mark
    Here's the problem. The effect of state law expungement of a criminal conviction on a federal issue is an incredibly complex one, with zero in reliable guidance. Add to the mix that, practically speaking, expungement affects records, not reality. Expungement doesn't mean it didn't happen. If the local paper reported it, or friend who knew talked about it on Facebook, or appears in some pre-expungement database, the information is out there and can be found.

    The FAA's current viewpoint is pretty clearly reflected in the MedXpress User Guide:

    If the record of a conviction has been expunged, state the date that the record was expunged and the court that ordered the expunction.​

    There have been very few cases (falsification on the medical app) which made it to the NTSB and the language is all over the place. Some suggest they might be bound by the state expunction. Others say they might not. I say "might" because the cases didn't face the issue squarely - in all of them I've read there wasn't a real expunction. At best the applicant thought the record had been expunged, but it wasn't.

    A further twist is state expunction law itself. Expunction in some is not an absolute. IOW, an expunged record in some states is still available for specific purposes. In some related to later offenses; in others, perhaps ironically, to later request for other expunction. The answer to the federal question may turn out to be different for different states.

    I'm interested in the issue beyond its FAA ramifications, so I'm fairly familiar with the arguments on both sides. Heard some very heated ones - between lawyers.

    No specific advice here. Just a very general one one - you don't want a medical issue to become a legal one. Before even getting to the FAA legal question of whether to disclose, there is what I generally see as the more important FAA medical question - the consequences of disclosure.

    To the OP - I see that's what you asked at the very beginning. Hope you get a good answer to that to discuss with your attorney to make a reasoned decision how to approach the application.
     
    MikeELP, benyflyguy and TCABM like this.
  13. Kenny Phillips

    Kenny Phillips Cleared for Takeoff

    Joined:
    Jul 29, 2018
    Messages:
    1,457
    Display Name:

    Display name:
    Kenny Phillips
    Sure, in the exact same way that Feds delete your NICS info.
     
  14. lbfjrmd

    lbfjrmd Pre-takeoff checklist

    Joined:
    Nov 13, 2015
    Messages:
    396
    Location:
    pensacola
    Display Name:

    Display name:
    FAA HIMS/AME/ATC flight doc
    there are laws ... and there are FAR's. The latter rule the skies!
     
  15. bflynn

    bflynn En-Route

    Joined:
    Apr 24, 2012
    Messages:
    4,605
    Location:
    Fuquay Varina, NC
    Display Name:

    Display name:
    Brian Flynn
    So what is the FAA's position on expungement? If the expungement occurred, then the courts are declaring that it was a legal mistake, but does the FAA view it that way?

    Knowing the attitude that FAA medical takes toward any possibility of something being wrong, I suspect the answer is they probably won't care and you'll be forced through the process to prove your fitness because the reporting becomes a flag that says "maybe it's true". The expungement just becomes mitigating after the fact, but it probably does not mitigate some conditions.
     
  16. James331

    James331 Touchdown! Greaser!

    Joined:
    Apr 18, 2014
    Messages:
    18,660
    Display Name:

    Display name:
    James331
    You live and die by the databases.

    Go run your history and see what comes up, if it’s not in a database...

    Go to your DMV and request a driving abstract.

    Request your FBI rap sheet
    https://www.fbi.gov/services/information-management/foipa/requesting-fbi-records

    Choose after you have all the facts.
     
  17. bbchien

    bbchien Touchdown! Greaser!

    Joined:
    Feb 13, 2005
    Messages:
    10,390
    Location:
    Bolingbrook, IL
    Display Name:

    Display name:
    Bruce C
    No you don't. There are innumberable private databases out there and Any ONE of them can have the offense in it. And FAA can use any one as evidence.
     
  18. James331

    James331 Touchdown! Greaser!

    Joined:
    Apr 18, 2014
    Messages:
    18,660
    Display Name:

    Display name:
    James331
    I’d just rather request said records and see what turns up first.

    If it ain’t in the local/DMV/Fed database I really doubt it’s going to be a issue.
    Now if the government decided to dig beyond that, which is HIGHLY unlikely for 99% of us, they are in witch hunt mode and you’re going to be getting screwed regardless.

    That’s just the facts, do what you will with them, now ethically if you feel like treating government like a confessional booth, that’s a choice only the individual can make.


    But ether way you slice it, having all the facts you can before you do anything, that’s always good.
     
    Last edited: Jan 12, 2019
    timwinters and 3393RP like this.
  19. flyingron

    flyingron Touchdown! Greaser!

    Joined:
    Jul 31, 2007
    Messages:
    15,968
    Location:
    Catawba, NC
    Display Name:

    Display name:
    FlyingRon
    The above is complete bull. Most states don't have such an expunction of convictions. At most you get sealing, which is an agreement not to disclose the conviction to most inquiries, but the FAA can see them. In fact, I'm not sure of what state you are envisioning that has that level of expunction for adult convictions. The complete expunction as you describe is typically only available (if at all) for arrest records in the case of charge dismissal or findings of innoncence.
    It certainly is not HEARSAY. You have no idea what the legal definition of hearsay is. Further, even something legally characterized as hearsay can be made admissible.

    And as Dr. B points out, nothing that ever turns into an electronic record can truly ever be considered entirely destroyed in this modern age.

    The fact that a record the FAA wants doesn't exist doesn't get you a free pass. Believe you me, I've had medical records go lost and the FAA still wanted to see them. The FAA may take other information instead.
     
  20. midlifeflyer

    midlifeflyer Final Approach

    Joined:
    May 25, 2006
    Messages:
    9,318
    Location:
    Chapel Hill NC
    Display Name:

    Display name:
    Mark
    I answered that above.

    No, that's not what expungement does, particularly in the state where you live. In North Carolina, expungement is a statutory remedy which can be used to clear official records of a conviction of certain crimes (primarily nonviolent misdemeanors and lower-level nonviolent felonies, with some specific exceptions) after a certain period of time (10 years for a felony; 5 years for a misdemeanor).
     
  21. flyingron

    flyingron Touchdown! Greaser!

    Joined:
    Jul 31, 2007
    Messages:
    15,968
    Location:
    Catawba, NC
    Display Name:

    Display name:
    FlyingRon
    NC "expungement" still shows up on criminal records. It just removes the "conviction" entry. The fact you were charged remains and it doesn't take much intuition to realize there may be an expunged conviction there.
     
  22. wsuffa

    wsuffa Touchdown! Greaser!

    Joined:
    Feb 22, 2005
    Messages:
    21,841
    Location:
    DC Suburbs
    Display Name:

    Display name:
    Bill S.
    And if the state sent it to NCIC or the FBI, an expunction (or sealing) at the state level is only a request to the FBI to remove it or seal their records. They are under no obligation to comply with a state order. Further, some foreign governments - including Canada - have access to the FBI records for use in immigration purposes (so don't try to lie there, either).

    Whether we like it or not, it's a "one strike..." environment. Even little mistakes will haunt you for the rest of your life - you may have to explain over and over even if you've turned your life around. And it will get even worse. Big brother is watching.
     
  23. James331

    James331 Touchdown! Greaser!

    Joined:
    Apr 18, 2014
    Messages:
    18,660
    Display Name:

    Display name:
    James331
    Hence see what you’re up against, or maybe not up against.

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

    midlifeflyer Final Approach

    Joined:
    May 25, 2006
    Messages:
    9,318
    Location:
    Chapel Hill NC
    Display Name:

    Display name:
    Mark
    Depends on the state. In NC for example, the charge is removed as well as the police reports about it.
     
  25. benyflyguy

    benyflyguy Cleared for Takeoff

    Joined:
    Jan 1, 2018
    Messages:
    1,317
    Display Name:

    Display name:
    benyflyguy
    From a practical standpoint. If the court saw it fit to expunge-then you should have nothing to worry about disclosing to the FAA and go through their process. Might be a bit to get through but you’ll get through. They don’t punish for that. The punish for lying and hiding-severely I might add.
     
  26. flyingron

    flyingron Touchdown! Greaser!

    Joined:
    Jul 31, 2007
    Messages:
    15,968
    Location:
    Catawba, NC
    Display Name:

    Display name:
    FlyingRon
    Negative. That does NOT happen here. Public disclosure is blocked, but the charges are still available to the state (notably LEO and the prosecutors) and likely the feds.
     
  27. flyingron

    flyingron Touchdown! Greaser!

    Joined:
    Jul 31, 2007
    Messages:
    15,968
    Location:
    Catawba, NC
    Display Name:

    Display name:
    FlyingRon
    Nonsense. The FAA doesn't care if you were expunged or not. They want to know if you have psychological or other issues that the criminal charges were a manifestation about.
    Don't believe that expungement FIXES anything here.
     
  28. midlifeflyer

    midlifeflyer Final Approach

    Joined:
    May 25, 2006
    Messages:
    9,318
    Location:
    Chapel Hill NC
    Display Name:

    Display name:
    Mark
    If you say so. I'll stick with my reading of the statute if you don't mind. There are, of course, exceptions and limitations. I'm pretty sure I said that earlier. I'm sticking with the general description here, not discussing it in depth with one of my clients or getting into some of the availability changes which occurred last year.
     
    Last edited: Jan 13, 2019
  29. flyingron

    flyingron Touchdown! Greaser!

    Joined:
    Jul 31, 2007
    Messages:
    15,968
    Location:
    Catawba, NC
    Display Name:

    Display name:
    FlyingRon
    Ask yourself this question. If it all truly was removed, how do they know not to offer a second expunction which is contrary to the law? Note that NOTHING in the GS requires (nor would it work if it did) any information transferred to the federal record keepers to be removed.
     
  30. Matthew

    Matthew Touchdown! Greaser!

    Joined:
    Apr 18, 2005
    Messages:
    14,704
    Location:
    kojc, kixd, k34
    Display Name:

    Display name:
    Matthew
    I don’t have the text in front of me, but doesn’t it say “...have you ever...?”, not “...is there a record...?”

    Not trying to be a smartass here, but reporting it and attaching the court ordered expungement to it - how would FAA take that into consideration?
     
  31. wsuffa

    wsuffa Touchdown! Greaser!

    Joined:
    Feb 22, 2005
    Messages:
    21,841
    Location:
    DC Suburbs
    Display Name:

    Display name:
    Bill S.
    tl;dr version: expungement is useless for many purposes. Assume that there was no expungement.