First-offense marijuana arrest threatens Iowan’s career, even after it’s expunged

A lawsuit over a minor marijuana charge illustrates how even an expunged drug prosecution can have major, unexpected consequences for Iowans. (Photo via U.S. Drug Enforcement Administration)

An Iowa woman whose livelihood is threatened by a first-offense possession of marijuana charge is taking the Iowa Department of Human Services to court over the matter.

The case illustrates how even a minor a drug offense that has been expunged from the public record can have major, unexpected consequences for Iowans.

In recently filed court papers, Brittney Engel says that in September 2019 she was arrested for misdemeanor possession of marijuana. She says she later pled guilty to the charge and was granted a deferred judgment, which meant that after she successfully completed probation in May 2020, the records related to the prosecution were expunged from public view.

According to Engel, she has a bachelor’s degree in early childhood education, and last September she accepted a job as the head preschool instructor at the New Horizon Academy in Des Moines.

Engel alleges that soon after she took the job, she was fired when a background check conducted by the Iowa Department of Human Services uncovered the 2019 marijuana case, which DHS said made her ineligible to work for a child-care provider.

The department cited a state law that says if, within five years of licensure for child care, a person has been convicted of a controlled-substance offense, they shall be prohibited from involvement with professional child care for a period of five years from the date of conviction.

Engel says she appealed the agency’s decision to the DHS director who upheld the action. She and her attorney are now seeking judicial review of the department’s actions, arguing that a deferred judgment should not count as a conviction under Iowa’s child-care law.

The state has filed a motion to dismiss the case, and Engel’s attorney has asked the court to seal the records in the lawsuit.  The court has yet to rule on either of those requests.

To date, 15 states and Washington, D.C, have legalized marijuana for adults over the age of 21. Iowa is not among them, but in recent years it has shown a tendency to be more lenient with minor, first-offense drug crimes and more permissive with the practice of expunging criminal records.

At the beginning of the 2021 legislative session, nearly 40 Democrats, from city council members to state senators, signed on in support of legalizing the possession of small amounts of marijuana and expunging the criminal records of Iowans who have been previously charged with misdemeanor marijuana possession.

Republicans, who hold the majority in the Legislature, haven’t backed that idea, but one of the bills lawmakers considered this year, House File 223, would have enabled people convicted of nonviolent class D felonies to have the public record of the case expunged. Among the criteria the defendant would have to meet: More than 10 years would have to have passed since the discharge of the defendant’s sentence; all conditions of the defendant’s parole or probation would have to be satisfied; all court costs, fees, fines, restitution, and any other financial obligations would have to be paid; and the defendant could not be facing criminal charges, be on probation or incarcerated.

Deferred judgments that result in expunged criminal cases are intended to shield first-time offenders from some of the long-term, life-altering consequences of a minor conviction.

In Iowa, a deferred judgment means that the adjudication of guilt and the imposition of a sentence are delayed while a judge retains the power to impose a sentence if the defendant fails to comply with requirements spelled out by the court as part of probation. If the defendant successfully completes probation, the court will expunge the public record of the prosecution and seal from public view the court record of the prosecution.

However, the Iowa Division of Criminal Investigation, which assists state agencies with certain types of background checks, may keep a confidential record of the case, along with the courts, partly to make sure people don’t receive more than one deferred judgment.

At the same time, police agencies maintain their publicly accessible records of arrests, so even when a deferred judgment is granted, a search of police records will document the arrest that led to the prosecution.

Clark Kauffman
Deputy Editor Clark Kauffman has worked during the past 30 years as both an investigative reporter and editorial writer at two of Iowa’s largest newspapers, the Des Moines Register and the Quad-City Times. He has won numerous state and national awards for reporting and editorial writing. His 2004 series on prosecutorial misconduct in Iowa was named a finalist for the Pulitzer Prize for Investigative Reporting. From October 2018 through November 2019, Kauffman was an assistant ombudsman for the Iowa Office of Ombudsman, an agency that investigates citizens’ complaints of wrongdoing within state and local government agencies.