WILL A DUI GO ON MY CRIMINAL RECORD?
This question comes up quite often in various different scenarios. Most of the time these questions arise in the context of employment application related questions and what records are available to employers that are looking to hire. When answering these questions you need to understand what “criminal records” are out there and what is available to the public. There are four types of records that might tip off a prospective employer that someone has a DUI on their record.
1. Driver’s License Records – These records are maintained by the Kansas Department of Revenue and they are completely separate from your criminal record. These records contain information about your driving records. These records will reflect moving violation convictions, records of accidents, records of chemical test refusals or failures, DUI convictions, et. cetra. If you were convicted of a DUI or lost your license administratively due to a chemical test failure or refusal it will be reflected on your driving record. Although driver’s license records are not criminal records they are commonly requested by employers if the prospective employee may be operating a vehicle. A close review of a driving record can tip off an employer that you may have a DUI in your past.
2. Public Criminal Records – These records are commonly available online through local jurisdiction court websites. These records are available to everyone and they include charging information, mugshots, disposition information and additional case information. Examples of these local jurisdiction websites include:
3. Law Enforcement Criminal Records – These records are maintained by the Kansas Bureau of Investigation. The Kansas Bureau of Investigation is the central repository for all criminal records in the State of Kansas. All jurisdictions are supposed to report to the KBI. The KBI is the official record keeper. The KBI makes most of these records available to the public and will run a criminal background check on a prospective employee for a small fee. The KBI is supposed to maintain records of all convictions and most diversions that take place in the State of Kansas.
4. Arrest Records – These records are maintained by local law enforcement and in some instances the KBI. These are records of interaction with law enforcement that involved the arrest of a person even if that person was never charged with a crime. These records are not generally available to the public.
Now that you understand the types of records that exist you need to know how to answer your employer’s questions depending on the particular outcome of your case. It is important to know the ultimate disposition of your DUI case before you answer the questions your prospective employer may ask because the ultimate disposition of the case indicates what records are available for the employer to discover.
For the purpose of this subject only, there are four possible outcomes to a DUI case:
1. Case Dismissed/Client Found Not Guilty – If a client’s case was dismissed or the client went to trial and was found not guilty a couple of records may exist; an arrest record, a driver’s license record, and a public criminal record. These records should not indicate that the client was found guilty but they may still indicate that the client was arrested, charged and that their license may have been suspended (depending on if their license was suspended administratively).
2. Case Never Charged – If a client’s case was never charged then two records still might exist; a driver’s license record (depending on if their license was suspended administratively) and an arrest record. Records should not indicate that a client was convicted of the charge but they may still indicate that the client’s license was suspended and that the client was arrested.
3. Diversion Agreement – If a client’s case was resolved through a diversion four records might exist; a law enforcement criminal record showing a final disposition as “Diversion”, an arrest record, a public criminal record showing “diversion” as the final disposition, and a driver’s license record (depending on if their license was suspended administratively).
4. Found Guilty – If a client’s case was resolved through a finding of guilt four records will exist; a law enforcement criminal record showing a final disposition as “Guilty”, an arrest record, a public criminal record showing “Guilty” as the final disposition, and a driver’s license record with a suspended license.
Now using this information you can answer the following job application questions.
Have you ever been convicted of a crime?
You only have to answer Yes if you were found guilty of a DUI offense or other crime.
Have you ever been convicted of a felony?
You only have to answer Yes if you were found guilty of a felony DUI offense (this usually only occurs when it is your third time DUI). Even if you have been convicted of a first or second DUI you do not need to answer yes to this question unless it was a felony DUI.
Have you ever been arrested for any crime?
Under all of the above scenarios (even case dismissed, client found not guilty or charges never filed) if you were arrested for a DUI you should answer Yes.
Have you ever convicted of a crime or been party to a differed adjudication, suspended adjudication or diversion of a criminal offense?
You have to answer Yes to all the above scenarios except case dismissed/client found not guilty or case never charged.
Have you ever had a criminal record expunged or sealed from public view?
You can answer NO to this question in all of the above scenarios unless you have specifically expunged a record. Expunging a record has nothing to do with a diversion, you have to file separate paperwork to expunge a criminal offense.
When you are charged with a DUI you have a lot at stake. Your driver’s license, your liberty and your criminal record are all on the line. There are real long lasting ramifications to your life when you find yourself with a DUI. If you have further questions feel free to contact the DUI defense lawyers at Roth Davies for a free consultation.