DUI Dilemma: What To Put On A Job Application

Driving under the influence may constitute a felony depending upon the severity of the conduct and how many prior convictions the subject has on his or her record. Such convictions can complicate a job search greatly. While not every employer will inquire about misdemeanor convictions, most will inquire about felony convictions. Those convicted of driving under the influence will then face the decision of whether to be truthful or deceptive. In such cases, it is better to default to the side of honesty, although dishonesty does not always carry legal ramifications.

Disclosure and the Law

Generally, the law does not require anyone convicted of driving under the influence to notify his or her current or future employers of the conviction. With few exceptions, it is not illegal to lie on a private sector job application. Applications to security clearances and public sector jobs will require truthful responses to the questions on the application, including questions pertaining to one’s criminal history. Anyone who is considering being less than truthful on a job application should ensure that they never sign anything to the effect that they are swearing under penalty of perjury that the information contained on the form is true.

 

Disclosure and Pragmatism

In practice, the disclosure issue is moot. Most employers perform background checks before hiring employees and any conviction for driving under the influence is likely to appear on a background check. A conviction for driving under the influence is a minor offense by criminal law standards, as it does not involve acts of moral turpitude or dishonesty.

While many employers will be willing to overlook such an offense, lying on a job application indicates dishonesty and will almost certainly result in being disqualified for that position. While prospective employees should not volunteer their criminal histories to prospective employers, answering truthfully if asked will usually lead to a better outcome.

Expunction and Job Applications

Having the conviction expunged is one possible solution to the problem. An expunction is a court order directing that records of a conviction or arrest be removed from state databases. Such orders are popular for two reasons. First, many states have laws prohibiting employers from discriminating against persons with criminal records when that conviction was expunged. Second, many prospective employees will also wish to avoid the issue altogether by having their background checks come back clean.
In practice, the issue is not as black and white as the law would make it seem. As one Tampa DUI attorney states, many DUI arrests wrongfully charge someone, but with the arrest being made, it will remain on your record even after having a case dismissed. While state laws may make it illegal to discriminate based upon the presence of a conviction or an arrest that was expunged, many employers will do it anyway.

Proving that such discrimination occurred is very difficult, as most positions have a number of qualified applicants and employers can easily “move in a different direction” or decide that a particular applicant “is not the right fit” for a particular position.
This discrimination occurs as employers are likely to have access to expunged records. When performing background checks, most employers use private background check firms that mine public records; many of these records will be obtained before they are expunged from state databases, resulting in expunged convictions still showing up on background checks. Expunction orders will not remove all records of the conviction from every private actor with knowledge of the conviction.
Additionally, employers may terminate or decline to hire employees for lying on job applications. Some states prevent employers from asking about expunged convictions, but many states have no such prohibitions and many employers will simply ask about any convictions. Employees who deceive their prospective employers will be removed from consideration regardless of any state laws to the contrary. Applicants for public sector jobs are often required to disclose convictions, expunged or otherwise.
When applying for a new position, honesty is usually the best policy. Applicants should not volunteer the information, but should not be evasive if the employer asks about such matters either on the application or in an interview. Applicants who present well and can explain the conviction may get the job regardless; applicants who are evasive or make deceptive statements will certainly not be hired. Lying on an application where one swears under penalty of perjury that the information is correct constitutes a felony and should be avoided at all costs.
This is not to say that having a record expunged is of no value. An expunction can be a particularly valuable tool for those applying for public sector positions, as those who admit that they have an expunged conviction may not be discriminated against on the basis of that conviction. Additionally, a prompt expunction may remove information from state databases before other parties obtain knowledge of it. Finally, a properly expunged conviction should result in future law enforcement encounters proceeding more smoothly, as they will not be colored by a previous criminal conviction. Persons convicted of driving under the influence should seek legal counsel and discuss the possibility of having their convictions expunged.

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