Last updated:  August 13, 2021  

 I.  Loss & restoration of civil/firearms rights

A.  Civil rights  

The rights to vote and hold office are not lost as a result of conviction, and prisoners are permitted to vote by absentee ballot.  Vt. Stat. Ann. tit. 28, § 807.  A person who “has served a term of imprisonment in this state after conviction of a felony” is disqualified to act as a grand or petit juror, unless pardoned.  tit. 12, § 64.  See also tit. 4, § 962(a)(5).   Juvenile court adjudications do not “impose any civil disabilities sanctions ordinarily resulting from a conviction.”  tit. 33, § 5202(a).

B.  Firearms  

Firearms rights are generally not lost upon conviction, though the sentencing court may prohibit possession of firearms as a condition of probation.  See State v. Kasper, 566 A.2d 982, 984 (Vt. 1989); see also Jay Buckey, Note, Firearms for Felons? A Proposal to Prohibit Felons from Possessing Firearms in Vermont, 35 Vt. L. Rev. 957 (2011).  However, persons convicted of a felony under Vermont law who have not been pardoned, or whose convictions have not been sealed or expunged, remain subject to federal firearms restrictions by virtue of the state’s failure to restore all three civil rights.  

C.  Compilation of collateral consequences  

Under 13 V.S.A. § 8004, enacted in 2014 and effective January 1, 2016, the state attorney general is directed to compile a collection of “any provision in this State’s Constitution, statutes, and administrative rules which imposes a mandatory sanction or authorizes the imposition of a discretionary disqualification and any provision of law that may afford relief from a collateral consequence,” and to update this compilation annually.  In carrying out this duty the attorney general “may rely on the study of this State’s collateral sanctions, disqualifications and relief provisions prepared by the National Institute of Justice described in section 510 of the Court Security Improvement Act of 2007, Public Law 110-177.”

In 2017 an interactive searchable database of collateral consequences imposed by Vermont statutes and rules was prepared for the Vermont Attorney General by the Collateral Consequences Resource Center: vermont.ccresourcecenter.org.  

II.   Pardon policy & practice

A.  Authority

Pardon authority is vested in the governor exclusively.  Vt. Const. § 20.  “On request of the governor, the [parole board] shall act as an advisory board to assist or act for him or her in investigating or hearing matters pertaining to pardons, and may make recommendations to him or her regarding such matters.” Vt. Stat. Ann. tit. 28, § 453.  It is not clear what if any role the parole board has played in recent years, since applications are submitted directly to the governor’s office. 

B.  Process and application form

Guidelines issued by the governor’s office are available on the pardon application, available at http://governor.vermont.gov/sites/governor/files/VERMONT%20PARDON%20APPLICATION%209-6-13.pdf.  See also Vermont Dept of Corrections, Pardons, http://www.doc.state.vt.us/index.html.  A person must be up to date in payment of taxes and child support, have good credit, and submit four letters of recommendation.  There is no provision for an in-person hearing.   The process takes “a minimum” of several months to complete, and the contents of the application may be available via a public records request.

C.  Eligibility

The Governor’s Guidelines (supra) provide:

As a general matter, the Governor is not likely to grant a pardon to someone convicted within the past 10 years, absent other compelling factors.  The Governor is especially unlikely to grant a pardon if you have not fully completed all aspects of your sentence (including probation or parole).¹

The Guidelines indicate that a pardon is unlikely for persons convicted of violent crimes, or with a significant criminal history.

D.  Standards

According to the Governor’s Guidelines (supra), the following additional factors are considered in the pardon determination:

The nature of the offense (unlikely to consider violent crimes)

Whether the applicant has taken responsibility for actions

Subsequent offenses

Citizenship and contributions to the community (extremely important: “What have you done since your conviction to demonstrate your good citizenship and to make contributions to the community? Are you up to date on all of your legal obligations, including child support, if any?”)

Manifest injustice in the legal process (only in rare cases – the pardon process is not the place to reargue your case)

Reason for the pardon request (“how specifically will a pardon help you to better contribute to your community?”)

E.  Effect of a pardon

According to the Governor’s guidelines, “A pardon will not necessarily erase your conviction or the record of that conviction, and may not change the consequences of that conviction.”

F.  Frequency of grants

In recent years 50-60 pardon applications are received annually, but few are granted.  As of March 15, 2020, Governor Phil Scott had issued no pardons in his first three years in office.  Until the very end of his term, Governor Peter Shumlin issued only six pardons, fewer than two a year, and added to that total only with a batch of marijuana possession pardons (see below). ² Governor Douglas (2003-2011) granted only 13 pardons.   

Marijuana pardons:  About a month before the end of his term, in December 2016, Governor Shumlin announced his intention to pardon people convicted of possessing less than 1 ounce of marijuana before Vermont passed a decriminalization law in 2013.   People who had never been convicted of a violent crime or felony were eligible to apply, and the governor’s office estimated that 10,000 to 17,000 people could be eligible for the special pardon.  In the end Governor Shumlin pardoned 192 people.  See https://www.nytimes.com/2017/01/04/us/vermont-marijuana-pardons.html.  His successor indicated his agreement with the pardons, but as of May 2018 had not continued the program. 

G.  Contact

Pardons Coordinator
Office of the Governor
109 State Street
Montpelier, VT 05609-0101
802-828-3333

III.  Expungement, sealing & other record relief

A.  Expungement/sealing of conviction records

Effective July 1, 2012, a new chapter was added to Title 13 of the Vermont statutes to provide for expungement or sealing of many nonviolent misdemeanor offenses, a handful of minor felonies, and offenses that are no longer criminal or prohibited by law.  See Vt. Stat. Ann. tit. 13,  ch. 230, (§ 7601 et seq).  The list of “qualifying” felonies originally included only grand larceny and criminal mischief — in 2015, burglary of an unoccupied dwelling was added to the list, and in 2017 fraud/deceit offenses were added.  See S-115, § 1 (2015); H-172, § 3 (2017). Certain specified serious misdemeanors, including those involving sexual misconduct or violence, or misdemeanors that can otherwise serve as a “predicate offense” (including DUI, domestic violence, and stalking) are not within the definition of a “qualifying crime.”  § 7601(3) and (4).

In 2019, the law was amended to bring a variety of drug possession offenses and forgery within the definition of a “qualifying crime,” and to make some DUI offenses eligible after 10 years (sealing only), and youthful burglary after 15 years.  Heightened procedural protections were made applicable to eligible DUI and burglary offenses.   

The Uniform Collateral Consequences of Conviction Act (see below) requires that defendants be informed of their eligibility for expungement or sealing at the time charges are filed and at sentencing, or upon release from prison (if relevant).  See above.

A court “shall grant” expungement of the record of a qualifying crime (“or qualifying crimes arising out of the same incident”) if 5 years have passed since completion of sentence, if the person has not been convicted of any crime since the conviction for which expungement is sought, if all restitution has been paid, and if the court finds that expungement “serves the interest of justice.”  § 7602(b)(1).³  Alternatively, the court “shall” seal the record if it finds that more limited relief “better serves the interest of justice than expungement” and that “the person committed the crime after reaching 19 years of age.”  § 7602(b)(2).  It thus appears that sealing is not an available alternative for a crime committed while a minor.  Sealing is mandatory in the case of a person convicted of youthful burglary, after 15 years. 

In the event of an intervening conviction, the person may still be eligible.   In that event, the waiting period is increased to 10 years after completion of sentence, with no felony conviction in the 7 years before applying, and no misdemeanor conviction in the 5 years before applying. § 7602(c).⁴ If a person is charged with a criminal offense after he or she has filed a petition for expungement pursuant to this chapter, the court shall not act on the petition until disposition of the new charge. § 7604. 

In all cases, restitution must be paid in full.  If both the state’s attorney and the petition stipulate to the granting of the petition, the court “shall grant” the petition without a hearing.  § 7602(a).  If a petition for expungement is denied by the court pursuant to this chapter, no further petition shall be brought for at least two years, unless the court authorizes a shorter duration.  § 7605.⁵

In 2015, expungement was made available in cases where a person “was convicted of an offense for which the underlying conduct is no longer prohibited by law or designated as a criminal offense.” § 7602(a)(1)(B) (added by Vt. Act No. 36 (2015)).⁶ Expungement under this authority is available by petition immediately upon completion of sentence, including satisfaction of any restitution.  § 7602(d). Expungement “shall” be ordered “unless the court finds that expungement would not be in the interest of justice.” Id.⁷ Sealing is not authorized as an alternative to expungement in cases involving decriminalization.

Effect of expungement

See Vt. Stat. Ann. tit. 13, § 7606:

(a) Order and notice. Upon finding that the requirements for expungement have been met, the court shall issue an order that shall include provisions that its effect is to annul the record of the arrest, conviction, and sentence and that such person shall be treated in all respects as if he or she had never been arrested, convicted, or sentenced for the offense. The court shall provide notice of the expungement to the respondent, Vermont Crime Information Center (VCIC), the arresting agency, and any other entity that may have a record related to the order to expunge. The VCIC shall provide notice of the expungement to the Federal Bureau of Investigation’s National Crime Information Center.

(b) Effect.

(1) Upon entry of an expungement order, the order shall be legally effective immediately and the person whose record is expunged shall be treated in all respects as if he or she had never been arrested, convicted, or sentenced for the offense.

(2) In any application for employment, license, or civil right or privilege or in an appearance as a witness in any proceeding or hearing, a person may be required to answer questions about a previous criminal history record only with respect to arrests or convictions that have not been expunged.

(3) The response to an inquiry from any person regarding an expunged record shall be that “NO CRIMINAL RECORD EXISTS.”

(4) Nothing in this section shall affect any right of the person whose record has been expunged to rely on it as a bar to any subsequent proceedings for the same offense.

(c) Process.

(1) The court shall remove the expunged offense from any accessible database that it maintains.

(2) Until all charges on a docket are expunged, the case file shall remain publicly accessible.

(3) When all charges on a docket have been expunged, the case file shall be destroyed pursuant to policies established by the Court Administrator.

(d) Special index.

(1) The court shall keep a special index of cases that have been expunged together with the expungement order. The index shall list only the name of the person convicted of the offense, his or her date of birth, the docket number, and the criminal offense that was the subject of the expungement.

(2) The special index and related documents specified in subdivision (1) of this subsection shall be confidential and shall be physically and electronically segregated in a manner that ensures confidentiality and that limits access to authorized persons.

(3) Inspection of the expungement order may be permitted only upon petition by the person who is the subject of the case. The Chief Superior Judge may permit special access to the index and the documents for research purposes pursuant to the rules for public access to court records….

Effect of sealing

The effect of a sealing order is similar to, but more limited than, that of an expungement order. Vt. Stat. Ann. tit. 13, § 7607. For example, an entity that possesses a sealed record may continue to use it in a civil suit, a criminal justice agency may use a sealed record for criminal justice purposes, the conviction may be used as a predicate in any subsequent prosecution, and the court removes the case file from public access and bars viewing of the record in accessible databases, but does not destroy the case file or remove the record from accessible databases. Id.

Automatic sealing of certain motor vehicle violations.  In June 2021, S7 authorized automatic sealing of certain motor vehicle violations traffic violations, including operating after suspension and operating without a license.  See 23 V.S.A. § 2303.  S7 also directed further study of clean slate automation.  See section below.

Civil penalties for disclosure: In 2022, a law was enacted providing that Any state or municipal employee or contractor or agent of the court who knowingly discloses information about a sealed or expunged criminal record will be fined a civil penalty of up to $1000, and each disclosure will constitute a separate civil violation.  See H729. 

B.  Deferred sentencing/expungement

Vermont’s deferred sentencing statute, originally enacted in 1971, authorizes a court to defer imposition of sentence after an adjudication of guilt, and to place an individual on probation for an indefinite period pending satisfaction of conditions. Vt. Stat. Ann. tit. 13, § 7041.⁸  “Upon fulfillment of the terms of probation and of the deferred sentence agreement, the court shall strike the adjudication of guilt and discharge the respondent.  Upon discharge the record of the criminal proceedings shall be expunged,” provided that any restitution obligation has been satisfied. § 7041(b), (c).  A deferred sentence is “not a sentence at all, but rather a postponement of sentence that offers the defendant an opportunity to have an adjudication of guilt expunged.”  State v. Pierce, 163 Vt. 192, 196, 657 A.2d 192, 195 (1995).  Specified serious offenses are ineligible by statute. § 7041(b)(2).

In determining whether to order deferred sentencing or imprisonment, the court “shall consider the nature and circumstances of the crime, the history and character of the defendant, the need for treatment, and the risk to self, others, and the community at large presented by the defendant.”  § 7030.  The court is not required to impose a fixed probationary period or to allow discharge from probation upon completion of specific and clear conditions within the control of the probationer, but rather may impose probation until further order of the court.  See State v. Lloyd, 169 Vt. 643 (1999).  During the period of probation, the defendant must meet certain conditions imposed by the court in order to avoid incarceration, and failure to meet those conditions may result in revocation of probation.  See State v. Bensh, 168 Vt. 607 (1998).  A deferred sentence may include a restitution order, but “[n]onpayment of restitution shall not constitute grounds for imposition of the underlying sentence.”  § 7041(e).

Upon successful completion of probation, the charges are dismissed and the record is automatically expunged, “except that the record shall not be expunged until restitution has been paid in full, absent a finding of good cause by the court.”  § 7041(d).  Between 2001 and 2003, the law provided that the charges could not be dismissed until restitution had been paid, a requirement that evidently quickly proved unworkable.  An individual who has successfully completed probation need not wait the two year period called for under the expungement statute applicable to juvenile adjudications.  See State v. Putvain, 179 Vt. 619 (2006).

Under the law as originally enacted, and until recently, the court’s authority in every case depended upon a prior agreement between the state’s attorney and the defendant. See Vt. Stat. Ann. tit. 13, § 7041(a).  In 2005, the law was amended to give the court authority to defer adjudication without agreement from the prosecutor, under specified conditions, set forth in § 7041(b):

1. [the defendant must be 28 years old or younger;]
2. the crime must not be on a list of serious crimes; 
3. the court must order a pre-sentence investigation (unless this requirement is waived by the prosecutor);
4. the victim is permitted to submit a statement;
5. the court reviews the pre-sentence investigation and the victim’s impact statement with the parties; and
6. the court determines that deferring sentence is in the interest of justice. 

The first of these conditions relating to the defendant’s age was repealed in 2019, so that age is no longer a condition of judge-initiated deferred sentencing.

C.  Diversion/sealing

Vermont law also provides for an “adult court diversion project,” which is administered by the Attorney General and is “designed to assist adults who have been charged with a first or second misdemeanor or a first nonviolent felony.” Vt. Stat. Ann. tit. 3, § 164(a).⁹ The program also is designed to assist persons charged with a crime (except serious listed offenses) and who have need of substance abuse or mental health treatment.  Certain juveniles may also be eligible for this program, effective July 1, 2020.  The program may accept only persons against whom charges have been filed and the court has found probable cause, but are not yet adjudicated.  § 164(c)(1). Each state’s attorney, in cooperation with the adult court diversion project, “shall develop clear criteria for deciding what types of offenses and offenders will be eligible for diversion; however, the state’s attorney shall retain final discretion over the referral of each case for diversion.”  § 164(c)(4).  Program participants may be required to pay a fee of up to $300, but will not be excluded on the basis of inability to pay. § 164(c)(9).

Program participants are eligible for expungement two years after successful completion of the diversion program if restitution has been paid. The court shall provide notice to all parties of record of the court’s intention to order the expungement of all court files and records, law enforcement records other than entries in the adult court diversion project’s centralized filing system, fingerprints, and photographs applicable to the proceeding.  The court shall give the state’s attorney an opportunity for a hearing to contest the expungement of the records but, as of 2023, there is no requirement that the state’s attorney dismiss the charges. See H28 amending §§ 163(e) and 164(g).  Upon the entry of an order expunging such files and records under this section, the proceedings in the matter under this section “shall be considered never to have occurred . . . and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such participant inquiry in any matter.”  § 164(f).

D.  Victims of human trafficking

A person convicted of a “qualifying crime” (defined to exclude only serious violent offenses) as a result of the person having been a victim of human trafficking, may file a motion to vacate the conviction and if granted the record will be expunged.  (As originally enacted, this authority applied only to prostitution convictions, and it was enlarged in 2019 by H 460.)  If the motion is granted, the Court shall vacate the conviction, strike the adjudication of guilt, and expunge the record of the criminal proceedings. Vt. Stat. Ann. tit. 13 §§ 2658(b), (d).  “The Court shall issue an order to expunge, or redact the moving party’s name from, all records and files related to the moving party’s arrest, citation, investigation, charge, adjudication of guilt, criminal proceedings, and probation for the offense.” § 2658(d)(2).

E.  Expungement of marijuana offenses

On October 7, 2020, Governor Scott signed S.234 authorizing automatic expungement of convictions involving possession of 2 ounces or less of marijuana entered prior to January 1, 2021, said expungement to be completed no later than January 1, 2022.  Under Section 31 of this bill, the court “shall provide notice of the expungement to the person who is the subject of the record at the person’s last known address, the Vermont Crime Information Center (VCIC), the arresting agency, and any other entity that may have a record related to the order to expunge. The VCIC shall provide notice of the expungement to the Federal Bureau of Investigation’s National Crime Information Center.”  

F.  Sealing/expungement of youthful offenses (18-25) 

In 2018, S. 234 added a new section to Title 13 mandating sealing or expungement of conviction records, upon petition by the defendant, 30 days after completion of sentence for qualifying crimes (as defined in § 7601) committed between the ages of 18 and 21, “absent a finding of good cause by the court.”  13 V.S.A. § 7609(a).  “[T]he court shall grant the petition and issue an order sealing or expunging the record if it finds that sealing or expunging the record serves the interest of justice.” § 7609(c). 

In 2021, S7 extended the eligibility range to 18-25.  This law also modified a previous bar to relief in prior conviction of a “listed crime” (13 V.S.A. § 5301) to a 10-year bar.    

Otherwise, under a 2011 law, sealing of offenses committed before age 21 is available upon application to the court (or upon the court’s own motion) two years after final discharge. § 5119(g).¹⁰ 

G.  Non-conviction records

The provisions authorizing expungement or sealing of non-conviction records were extensively revised and expanded in 2018 by Section 3 of S. 173, so that relief is no longer limited to cases where an arrest or charges are for a “qualifying crime,” as defined in § 7601. The waiting periods were reduced in 2019 by H 460. In addition, the requirement that an individual file a petition was also eliminated in most cases.  “Unless either party objects in the interest of justice, the court shall issue an order sealing the criminal history record” 60 days after charges are dismissed at arraignment,¹¹ or before trial without prejudice, or at any time if the government agrees. Vt. Stat. Ann. tit. 13, § 7603(a).   If the government objects, the court shall hold a hearing to determine whether sealing or expunging the record “serves the interest of justice.” § 7603(b). In such cases, the court shall expunge the record after the statute of limitations has expired, or after eight years whichever is shorter.  § 7603(f).  Where the defendant is acquitted, or where charges are dismissed before trial with prejudice, the court must seal the record within 60 days, absent agreement by the parties for earlier sealing.  § 7603(e). See also the discussion above of the provision of S. 173 authorizing further study of whether to expand eligibility for expungement, and whether to make sealing automatic.

H.  Sealing and expungement for juvenile and “youthful offender” adjudications

Juvenile records are generally unavailable to the public. Vt. Stat. Ann. tit. 33, § 5117.  Records of juvenile adjudications shall be sealed two years after discharge, unless, on motion of the state’s attorney, the court finds that additional charges are pending and that rehabilitation has not been attained. § 5119(a).  Per a 2019 law (S105), the court shall expunge juvenile diversion cases two years after completion, if restitution has been paid, the person has no subsequent convictions or pending proceedings, and rehabilitation has been attained to the satisfaction of the court.  § 7601.

Records of “youthful offender” cases (those originally filed in district court and later transferred to family court) are automatically expunged in district court and sealed in family court upon a successful motion to terminate youthful offender status for successful completion of probation.  § 5287.  Under both of these authorities, sealing “means to physically and electronically segregate the record in a manner that ensures confidentiality of the record and limits access only to those persons who are authorized by law or court order to view the record.” § 5119(j).  Sealed records “shall be considered never to have occurred, all general index references thereto shall be deleted, and the person, the Court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter.” § 5119(e).

See also “Sealing/expungement of youthful offenses (18-25),” above.

I.  Consideration of “clean slate” automatic sealing

In June 2021, Section 5 of S7 renewed the legislature’s earlier request for a study of broader expansion and automation of sealing and expungement.¹² This time the legislature did not entrust the task of making recommendations to the executive branch: 

During the 2021 legislative interim, the Joint Legislative Justice Oversight Committee shall consider how to simplify and automate the process of expungement and sealing of criminal history records and consider a comprehensive policy that provides an avenue for expungement or sealing of records for all or most offenses except those listed in 33 V.S.A. § 5204(a)[violent juvenile offenses]. In its analysis of what offenses should be eligible, the Committee shall consider whether to exclude from eligibility those offenses associated with and resulting from domestic and sexual violence. The Committee shall propose legislation for the 2022 legislative session on its recommendations regarding:

(1) a policy to make all or most criminal history records eligible for
sealing or expungement, except for conviction records of offenses listed in 33
V.S.A. § 5204(a) and any other offenses the Committee deems appropriate for
exclusion;
(2) the individuals or entities that should have access to sealed criminal
history records;
(3) whether Vermont should continue to employ a two-track system that
provides for sealing or expungement of criminal history records based on the
nature of the offense, or whether Vermont should employ a one-track system
that provides for either sealing or expungement for all eligible offenses;
(4) implementing an automated process, not requiring a petition, to seal
and expunge criminal conviction records that provides for notice to the
prosecuting office and an opportunity for the prosecutor to oppose the sealing
or expungement.

J. Judicial certificates of relief and restoration of rights 

On June 10, 2014, the Governor of Vermont signed the Uniform Collateral Consequences of Conviction Act, making Vermont the first (and, to date, only) state in the Nation to enact the entirety of this scheme into law.  See Act 181, Vt. Stat. Ann. tit. 13, ch. 231.  This law, which became effective January 1, 2016, authorizes courts to issue orders relieving collateral sanctions imposed under the laws of Vermont, to benefit those convicted and sentenced under Vermont law and under the laws of other jurisdictions.

1.  Order of Limited Relief

Under Vt. Stat. Ann. tit. 13, § 8010, the sentencing court is authorized to issue an order dispensing with “one or more mandatory sanctions related to employment, education, housing, public benefits, or occupational licensing,” if the court finds that the individual has established by a preponderance of the evidence that granting the petition “will materially assist the individual” in obtaining a benefit in one of these areas, that the individual has substantial need for the relief requested in order to live a law-abiding life; and that granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual.

2.  Certificate of Restoration of Rights

Under Vt. Stat. Ann. tit. 13, § 8011, a court may issue a certificate relieving all but certain specified collateral sanctions five years after sentencing or release from incarceration for a conviction in any jurisdiction. Sanctions not affected include sex offender registration, driver’s license suspensions and revocations, and law enforcement employment.  § 8012(a). 

The 32 “listed crimes” as well as drug trafficking, are not eligible for either form of relief.  § 8012(b), 13 V.S.A. § 5301(7). Under § 8014, an order of limited relief or a certificate of restoration of rights may be introduced as evidence of a person’s due care in a judicial or administrative proceeding alleging negligence or other fault.  Pardon and other relief afforded convictions from other jurisdictions is given the same effect in Vermont as it has in the jurisdiction that granted it. § 8009(d) and (e).

Defendants must be given notice of collateral consequences by the court upon the filing of charges and before accepting a guilty plea (§ 8005), and by the department of corrections upon release from confinement (§ 8006).  In 2017 these sections were amended to include a requirement of notice of eligibility for expungement or sealing.  See H-171 § 3 (2017).

IV.  Criminal record in employment & licensing

A.  Ban-the-box in public and private employment

Effective July 1, 2017, no public or private employer may inquire about an applicant’s criminal history on an initial employment application. Vt. Stat. Ann. tit. 21, § 495j (added by 2016 H.261).  Inquiries into criminal history may only be made during an interview or after the employee has been deemed otherwise qualified for the position. § 495j(a).  The law does not apply to positions where state or federal law creates a mandatory or presumptive employment disqualification based on one or more types of convictions. § 495j(b).  However, the law does provide that, in such cases, the scope of the inquiry may only cover those convictions that would trigger the disqualification. § 495j(b)(1)(B).  It also gives those excepted employees an opportunity to explain the circumstances of any conviction, including post-conviction rehabilitation. § 495j(c).  Each violation of this provision is punishable by a $100 civil penalty.

B.  Occupational/professional licensing

Until recently, Vermont had weak general laws regulating consideration of conviction in licensure for a number of professions. Prior to its amendment in 2021, Vt. Stat. Ann. tit. 3, § 129a(10) provided that unprofessional conduct that provides the basis for discipline of applicable licensees includes “[c]onviction of a crime related to the practice of the profession or conviction of a felony, whether or not related to the practice of the profession.”  See also § 12 (defining the dozens of professions regulated by this law).

 In 2021,  HO289 added the following to § 129a(10):

If an individual has a conviction of concern, the board or hearing officer shall
consider the following in determining whether to deny or discipline a license,
certification, or registration to the individual based on the following factors:
    (A) the nature and seriousness of the conviction;
    (B) the amount of time since the commission of the crime;
    (C) the relationship of the crime to the ability, capacity, and fitness
      required to perform the duties and discharge the responsibilities of the
      profession; and
   (D) evidence of rehabilitation or treatment.

Juvenile court adjudications do not “operate to disqualify the child in any civil service application or appointment.”  Vt. Stat. Ann. tit. 33, § 5202(a).

In 2020, S233 required licensing boards to provide a pre-application determination regarding whether an applicant’s criminal background would disqualify the applicant from licensure in the profession(s) for which the applicant may thereafter seek licensure.  3 V.S.A. § 123(k) and (l).  This request shall provide documentation related to the individual’s conviction or convictions, evidence of rehabilitation, and identification of the profession or professions for which the individual seeks licensure. An applicant would pay a $25 fee for a “second chance determination” request, and this fee would be deducted from the license application fee if the applicant does thereafter seek licensure. The new law applies to the professions and occupations regulated by the Office of Professional Regulation, the Department of Environmental Conservation (for well drillers), the Standards Board for Professional Educators, the Board of Medical Practice, the Electricians’ Licensing Board, and the Plumbers’ Examining Board.

The Uniform Collateral Consequences of Conviction Act authorizes courts to issue orders relieving collateral sanctions imposed under the laws of Vermont, including sanctions barring people with a felony conviction from licensure.   See Vt. Stat. Ann. tit. 13, §§ 8010, 8011, discussed in Part III, supra.  The 

 

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1. Vt. Stat. Ann. tit. 28, § 809 provides procedures for executive pardons of persons currently incarcerated.  Section 809 provides procedures for conditional pardons of incarcerated persons whereby a person may be returned to incarceration upon failure to comply with the conditions of pardon.  These provisions are probably of little significance since the Guidelines provide that a pardon is especially unlikely prior to completion of sentence.
2. See http://governor.vermont.gov/node/2619; http://www.burlingtonfreepress.com/story/news/2015/01/23/shumlin-issues-three-pardons/22224479/; http://www.burlingtonfreepress.com/story/news/2013/12/31/shumlin-issues-first-2-pardons-/4267847/.
3. The waiting period was reduced from 10 to 5 years in 2017.  See H-171, § 4 (2017).  At the same time, now-redundant authority that permitted expungement of offenses committed before age 25 after 5 years was repealed.
4.  These waiting periods were also reduced in 2017, and again in 2018.   Prior to 2017 an intervening felony conviction was disqualifying, and there was a 20-year minimum waiting period in the event of a subsequent misdemeanor conviction, and a 15-year crime-free look-back period.  See H-171, § 4 (2017). In 2018, the post-conviction waiting period was reduced to 10 years, with different look-back periods for intervening felonies and misdemeanors.  See S. 173, § 1 (2018). 
5. This waiting period was also reduced in 2017, from 5 to 2 years.  See H-171, § 5 (2017). The authority for reduction with court authorization was also added at that time.
6. This expansion in scope followed 2012 legislation that reduced possession of small quantities of marijuana from a criminal to a civil offense.  In cases where expungement is sought for  marijuana possession in an amount that is no longer criminal, “the petitioner shall bear the burden of establishing that his or her conviction was based on possessing an amount of regulated drug that is no longer prohibited by law or for which criminal sanctions have been removed.”  § 7602(e).
7.  Prior to 2017, petitioners were required to wait a year before filing for expungement, and the court was required to find that expungement is in the interest of justice before granting a petition. See H-171, § 4 (2017).  
8.   An individual charged with aggravated sexual assault of a child is ineligible for deferred adjudication and expungement.   Amendments to § 7041 effective July 1, 2014, expanded the class of offenses ineligible for deferred adjudication and expungement to include five additional offenses involving sexual assault of a child. 
9.  In 2009, § 164 was amended to cover second misdemeanors.  2009 Vt. Laws No. 156 (H.789) (eff. July 1, 2010). 
10.  2011 Vt. Laws No. 16 (S. 58) (eff. May 9, 2011) substituted 21 years of age for “the age of majority.” Vt. Stat. Ann. tit. 1, § 173 defines minority as under 18 yrs. Sealing under this authority is subject to a finding that “the person’s rehabilitation has been attained to the satisfaction of the court.” Id.  Individuals with a subsequent conviction or adjudicated for serious crimes listed at 13 V.S.A. § 5301 are ineligible, as are those with pending charges. Sealing “means to physically and electronically segregate the record in a manner that ensures confidentiality of the record and limits access only to those persons who are authorized by law or court order to view the record.” § 5119(j).  Where a record has been sealed, the offense “shall be considered never to have occurred, all general index references thereto shall be deleted, and the person, the Court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter.” § 5119(e).
11. the waiting period was reduced from 12 months in 2019.
12. In May 2018, the Department of State’s Attorneys and Sheriffs was directed to consider, in consultation with the Office of the Court Administrator, the Vermont Crime Information Center, the Office of the Attorney General, the Office of the Defender General, the Center for Crime Victim Services, and Vermont Legal Aid, whether the list of qualifying crimes should be expanded to include nonviolent drug offenses.  The group was also directed to study “the viability of automating the process of expunging and sealing criminal history records.”  The group was directed to report to the legislature by November 1, 2018, and to include “any recommendations on specific crimes to add to the definition of qualifying crimes pursuant to 13 V.S.A. §  7601.” See Section 4 of S. 173.  The group did not reach consensus on the issue of expansion in its report to the legislature on November 1, 2018.  The report also concluded that automation needs further study due to technical and resource challenges related to the state’s case management system.  See pp. 10-11 of the report.