Do you have to disclose a DUI on an employment application if the DUI was expunged off your record?

Written by J. Hirby and Fact Checked by The Law Dictionary Staff  

Driving under the influence (DUI) is usually a crime designated as a misdemeanor or a felony. A person convicted of a DUI has a criminal record under the criminal laws in most states. A DUI arrest or a conviction can make it difficult for a person to obtain employment, but the laws about disclosing the DUI to a prospective employer differ from state to state.

The Society for Human Resource Management conducted a survey in 2010 revealing that 92 percent of employers did criminal background checks on all job applicants. There is no federal law prohibiting an employer from asking a job applicant about arrests or convictions. A person with a DUI record must rely upon protection under state law from having to disclose the information on a job application. For example, some states prohibit an employer from asking a job applicant about an arrest that did not result in a conviction while other states do not.

A person convicted of a DUI can ask a state court to expunge the records. If a judge orders expungement of a criminal record, a person does not have to disclose the conviction or arrest on an employment application. Expungement removes the record of the arrest and conviction from the courts, law enforcement agencies and correctional facilities. As far as the law is considered, the arrest and court proceedings never happened.

The problem with expunging records is that not all states allow it. For instance, New York does not allow a person to expunge criminal conviction records, but New Jersey does allow expungement. A person should consult with an attorney in their home state because some states that allow expungement of criminal records do not allow it in cases in which the charge was a DUI.

In some states that do not allow record expungement, the law allows a judge to seal the records. An order sealing a criminal record prevents it from appearing on criminal background searches sent to employers by the state. Most states that permit a judge to seal criminal records do not allow it in cases involving a DUI or other alcohol- or drug-related driving offenses.

Unlike expunged records, sealing does not mean the charges never occurred. It merely makes it difficult for an employer to verify. A job applicant who answers a question about a DUI in the negative because it was sealed would technically be lying to the employer.

More On This Topic



Comments are closed.