Employment Background Checks and DUI

Drinking and driving can have any number of unfortunate consequences, not least of which is the court summons and potential criminal liability related to the offense. The procedures and penalties for DUI charges vary by state, so it is best to check your state laws or with a local DUI attorney for exact information. Many states allow first time offenders to escape serious consequences by attending an alcohol education course, but for people facing their second or third DUI arrest, the penalties can include temporary or permanent loss of license, fines, or even prison time.

A DUI conviction, or even a charge that does not end in a conviction, may negatively impact one’s career, particularly if an offender holds a commercial driver’s license (CDL) or is required to drive as part of his or her job.

An employer may choose to conduct background checks on current or prospective employees for any number of reasons, some more valid than others. Depending on how the background check is conducted, it may expose a DUI charge or conviction. But the limits of an employer’s ability to conduct such checks, and whether or not a DUI offense should be considered in a hiring (or firing) decision, is governed mostly by state laws.

All states are subject to the provisions of the federal Fair Credit Reporting Act (FCRA), which applies to background checks performed by outside companies but not those conducted in-house. While the FCRA prohibits the reporting of criminal arrests after a period of seven years, criminal convictions (including DUIs) may be reported indefinitely. Also, reporting restrictions imposed by the FCRA only apply to jobs with a yearly salary of $75,000 or less.

However, federal courts have often ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from barring employment of individuals with convictions unless they can prove a compelling business reason to do so. Still, this interpretation of the Civil Rights Act comes into conflict with some state laws. And most applicants have no way of knowing what goes on behind the scenes when they apply for a job.

Most states allow employers to refuse employment to anyone with a conviction record and many even allow employers to refuse applicants with an arrest record, mainly due to a lack of regulations in this area. At least 14 states have legal standards requiring an employer to prove the job relevance of a given conviction, including Colorado, Florida, Kansas, and New York. But only Hawaii, Kansas, New York, and Wisconsin apply these regulations to private employers as well.

California and eight other states offer certificates of rehabilitation for employment purposes to those convicted of a DUI or other crimes, lifting some barriers to employment. California Labor Code 432.7 states that employers cannot ask about an arrest that did not result in a conviction. And if you successfully complete a probation for a DUI in California, you can file a motion to withdraw your plea or set aside the verdict; this will show in your records that the case was dismissed.

Those running for public office or applying for a professional license in the state must disclose a DUI (or any conviction) from the past 10 years; the same is true for direct questions on an application regarding criminal convictions.

Most states require background checks for certain types of jobs, including anyone who works with children, the elderly or the disabled. This doesn’t necessarily mean a DUI record will preclude such an applicant from consideration, but it could factor into an employer’s hiring decision as a perceived character flaw. Also, many state and federal jobs require a background check; but this may depend on the kind of job, such as those requiring a security clearance.

Commercial drivers who commit a DUI on the job, or even in their personal vehicle, are prohibited from driving in a professional capacity for a certain period of time. As of 1999, convictions for major violations committed in a commercial vehicle (including a DUI) remain on one’s CDL record for 55 years. See FindLaw’s resources on commercial DUI and FMCSA regulations for more information about this.

Roughly 20 different types of information may be included in an official background check; these may include driving records, vehicle registration, criminal records, court records, character references, neighbor interviews and incarceration records. Some of this information may be gleaned from a pre-employment questionnaire or the job application itself. While most such questions are limited to whether or not the applicant has committed a felony, some states allow much broader questions about past charges for crimes.

As a rule of thumb, it’s usually best to tell the truth; while employers may overlook the admittance of a DUI offense, being caught in a lie usually removes the applicant from consideration for the job.

But the internet has proven to be a powerful tool for more informal background checks of job candidates, including online public records and social networking sites such as Facebook. For example, a steadily increasing percentage of employers admit to using Facebook to review job candidates, which could turn up information about a DUI arrest that otherwise might not show up (maybe you or a friend commented on the arrest). In this respect, an applicant who otherwise does not consent to a background check may be subject to one without even knowing.

While it’s not always an option, often dependent on specific state regulations, a DUI offender may choose to expunge his or her record. Expungement is a court-ordered process which effectively “seals” a record of arrest or a criminal conviction.

Many states limit expungement to just arrests that do not result in a conviction. The charge or conviction is not completely “erased,” per se, but is sealed for most purposes, including most employment-related background checks.

If you or a loved one is in a bind as a result of a criminal charge, immediately contact a Seattle Criminal Attorney. A Criminal lawyer is not going to judge you, and understands that everyone makes mistakes. Hiring a Seattle Criminal Lawyer to help can – at a minimum – reduce penalties, and can help direct people on how to best deal with their criminal charge, and many times even get them dismissed. So it should go without saying that someone cited for a misdemeanor or felony should hire a qualified Seattle Criminal Lawyer as soon as possible. Criminal charges can cause havoc on a person’s personal and professional life. Anyone charged with a crime in Washington State should immediately seek the assistance of a seasoned Seattle Criminal Lawyer.

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The Ignition Interlock Device Requirement

Ignition interlock devices (hereinafter “IID”) are instruments designed to prevent someone from operating a vehicle when the device finds alcohol on the driver’s breath. These devices, often installed on vehicles of those convicted of a DUI, essentially are Breathalyzer machines that control the ability to start the car. Almost all states have drunk driving laws allowing or requiring judges to order ignition interlock devices in cars operated by certain drunk driving offenders.

State laws vary greatly when it comes to ignition interlock devices. Specific state drunk driving laws should be consulted to find out whether an ignition interlock is mandatory, or within the discretion of the judge in any given case.

An ignition interlock device works by measuring the driver’s blood alcohol content and disabling the vehicle’s ignition if the driver’s breath contain alcohol. Most IIDs use a lock-out period to prevent starting the vehicle if the device detects more than a low threshold level of blood alcohol content. The lock-out period typically gets longer with each failed test.

During “rolling retests,” most IIDs signal the need to provide a fresh breath test. If, within a certain space of time, the machine does not confirm clean breath, often an alarm will sound or the car’s horn will honk to prompt the driver to turn off the vehicle. IIDs are not designed to turn off a moving vehicle in the event of a failed retest. Depending on the system in place, the device may save information relating to the failed retest.

Often, state laws give judges the discretion to order an ignition interlock device for specific classes of convicted drunk drivers, such as first time offenders. Under the laws of many states, IIDs may be used for a portion of the period in which the offender’s license would be suspended.

In these situations, qualifying offenders typically must satisfy other sentencing requirements in order to be able to drive with an IID. These requirements can include jail or time, probation, payment of a fine, completion of an alcohol treatment program, and a period of full license suspension, amongst others.

A growing number of states make an ignition interlock device mandatory, rather than simply leave it to the judge’s discretion, in certain types of drunk driving cases. Some states or specific cases may opt for the SCRAM device instead, which also monitors alcohol consumption in general. Some states have begun requiring first-time offenders to have IID’s installed. The most common situations in which these states require an IID (should the offender wish to drive) include: 1) Having multiple drunk driving convictions; 2) Having a minor in the car at the time of the incident; or 3) Having an elevated blood alcohol content level.

States have rules surrounding the installation and inspection of ignition interlock devices. Generally, drivers must have the device installed by a state approved installer and must provide proof of installation to the court. Often, state law also requires periodic inspections of the device by an approved installer.

 

Generally, the offender must pay any fees associated with an IID. These can include fees for the device itself, an installation fee, monitoring or calibrating fees, and a security deposit and/or device insurance fee. Some (but by no means all) states reduce certain drunk driving fines for those able to demonstrate an inability to pay the costs of an IID.

Almost all states incorporate ignition interlock devices into drunk driving sentences for certain offenders. These devices test a driver’s breath before allowing the vehicle to be started, and periodically retest breath during the drive. Depending on the specifics of the drunk driving conviction, in some states an ignition interlock device may be required by state law, or may be within the discretion of the judge to order.

If you or a loved one is in a bind as a result of a criminal charge, immediately contact a Seattle Criminal Attorney. A Criminal lawyer is not going to judge you, and understands that everyone makes mistakes. Hiring a Seattle Criminal Lawyer to help can – at a minimum – reduce penalties, and can help direct people on how to best deal with their criminal charge, and many times even get them dismissed. So it should go without saying that someone cited for a misdemeanor or felony should hire a qualified Seattle Criminal Lawyer as soon as possible. Criminal charges can cause havoc on a person’s personal and professional life. Anyone charged with a crime in Washington State should immediately seek the assistance of a seasoned Seattle Criminal Lawyer.

Attorney Fees and Agreements

Once you’ve decided to hire an attorney, it’s important that you review any agreements before signing on. Usually, an attorney will have a representation or fee agreement that will outline the terms of the attorney-client relationship and the fees and costs associated with the representation. Representation agreements are important because they will often let the client know how and when the lawyer will give the client status updates, and who will be performing the work. A clear fee structure is important because it outlines the various legal fees and costs associated with the work the attorney and his or her staff will perform, and allows the client to figure out whether or not he or she can afford the attorney. A clear fee structure can also be helpful in avoiding a fee dispute in the future.

After hiring an attorney, you might wonder what to expect from your attorney. While an attorney can not guarantee a specific outcome, there are some things that he or she can guarantee. An attorney should communicate with you effectively, comply with ethical rules, represent you in a competent manner, and bill you in the manner that is outlined in his or her fee agreement.

Communication between an attorney and a client is very important. Good communication means that the client can feel comfortable that the attorney is working on the client’s case. Of course, an attorney can’t be in constant communication with the client. After all, he or she usually is handling multiple cases. But, it’s important for an attorney to return a call or email within a business day, or at least explain why he or she couldn’t respond sooner. In addition, the attorney must keep the client updated with any new developments on the client’s case.

Lawyers are bound by the ethical rules of the state in which they are practicing. However, there are some themes common to the ethical rules of each state. The ethical rules of pretty much every state require that an attorney maintain attorney-client privilege, represent the client’s interests loyally, and not engage in criminal activities. In addition, states generally require that attorneys keep a separate bank account for their clients’ money. Finally, it’s expected that the lawyer handle each legal matter “competently,” which relates to the core knowledge and expertise of the lawyer.

How much a legal matter will cost you will depend on various factors including the complexity of the case, the costs involved, the amount of time spent on your legal matter, and the lawyer’s experience. Usually, an attorney will also factor in overhead expenses – such as rent, utilities, office equipment, etc. – when deciding on his or her fee. There are a few common types of fee arrangements you can expect when you hire an attorney.

Probably the most common type of fee arrangement is when the attorney charges an hourly rate. This type of fee allows the attorney to charge for the hours that he or she works on your legal matter. The hourly rate can vary depending on the type of work being performed – a court appearance versus legal research. Also, large firms will usually have different fee scales depending on the seniority of the attorneys, with senior members charging more that young associates.

A common type of fee arrangement for personal injury lawyers is a contingency fee. A contingency fee is based on the amount awarded in the case, whether it’s a judgment or a settlement. If the client loses the case, the lawyer doesn’t get the fee, but the client is still responsible for expenses associated with the case. A contingency fee can also be charged in property damage cases, or other cases that will potentially result in a large settlement or judgment, but can’t be used in criminal and child custody manners.

If you or a loved one is in a bind as a result of a criminal charge, immediately contact a Seattle Criminal Attorney. A Criminal lawyer is not going to judge you, and understands that everyone makes mistakes. Hiring a Seattle Criminal Lawyer to help can – at a minimum – reduce penalties, and can help direct people on how to best deal with their criminal charge, and many times even get them dismissed. So it should go without saying that someone cited for a misdemeanor or felony should hire a qualified Seattle Criminal Lawyer as soon as possible. Criminal charges can cause havoc on a person’s personal and professional life. Anyone charged with a crime in Washington State should immediately seek the assistance of a seasoned Seattle Criminal Lawyer.

Shall I Refuse the Breath Test?

To take a Breathalyzer or not can be a difficult question. The law of implied consent and blood alcohol content (BAC) testing varies from state to state. Generally, as a condition to obtaining a driver’s license, a driver has to consent in advance to submitting to a either a blood, Breathalyzer, or urine test when requested to do so by an officer. The penalties for refusing a blood or breath test are enhanced in Washington State, if convicted of a DUI Refusal. However, there are many factors to consider when making such a determination to either take a breath test or refuse it.

A person’s BAC will vary based on many factors, but primarily on the amount of alcohol consumed, the person’s gender, body type, and the time passed since the alcohol was consumed. If you are fairly certain that you are sober, the best decision might be to submit to a test in order to end the ordeal quickly. Conversely, if you are certain that you are highly intoxicated and above the legal limit (usually 0.08, which is on average, four to five drinks), your best bet might be to refuse and accept the punishment for refusal, which is typically an automatic license suspension.

In some states and in limited circumstances, the decision to submit to testing is taken out of drivers’ hands with the practice of forced blood draws by police. In extreme cases, officers can actually hold you down and draw your blood by force. Though this rarely happens, when it does, it usually happens after the driver was involved in a serious accident and subsequently refuses to submit to a BAC test. Whether or not forced blood draws are an option depends on your particular state; but the U.S. Supreme Court ruled in 2013 that a warrant is required.

The constitutionality of forced blood draws was briefly addressed by the Supreme Court in 1966, where the court ruled the process constitutional under certain exigent circumstances. However, laws with regard to forced blood draws are controversial and in a state of flux within the courts. The bottom line for the moment is that blood draws are rarely done, and almost never done unless the suspected driver was involved in an accident and a judge issues a warrant.

The decision on whether or not to submit to a BAC test does not happen in a vacuum. You must also consider any other evidence against you, such as failed field sobriety tests or poor driving. If the officer already has other evidence, and if your state allows authorities to use your refusal as further evidence of guilt (many do), the penalty for refusal could be tacked on to the penalty for the DUI, resulting in double penalties. On the other hand, if you were simply pulled over, the officer smelled booze, and then asked you to take a BAC test, a refusal alone may not be enough to convict.

The bottom line is, there are only a few circumstances in which a refusal is a better idea than taking a BAC test required by law. Your task will be to weigh your estimated blood alcohol content, local laws, and the evidence against you, in determining whether to refuse a BAC test. Of course, if you are under the influence at the time, that will only make the decision-making process more difficult (unless they let you call a lawyer). This all leads to the best course of action, not drinking anything at all before driving.

If you or a loved one is in a bind as a result of a criminal charge, immediately contact a Seattle Criminal Attorney. A Criminal lawyer is not going to judge you, and understands that everyone makes mistakes. Hiring a Seattle Criminal Lawyer to help can – at a minimum – reduce penalties, and can help direct people on how to best deal with their criminal charge, and many times even get them dismissed. So it should go without saying that someone cited for a misdemeanor or felony should hire a qualified Seattle Criminal Lawyer as soon as possible. Criminal charges can cause havoc on a person’s personal and professional life. Anyone charged with a crime in Washington State should immediately seek the assistance of a seasoned Seattle Criminal Lawyer.