Virgina is for lushes
May 27, 2006 5:51 PM   Subscribe

Is it possible to get a DUI off your "record"?

About four years ago I left a concert and was promptly pulled over by the police. Although I passed the field sobriety test I failed the breathalyzer. Now I have DUI on my record and twice since then it's came back to haunt me when applying for jobs with mandatory background checks.

The first time my employer was okay with it but they were miffed that I hadn't been upfront about the DUI. The fact is I'm really ashamed about the DUI and no one outside of one or two very close friends knows about it.

Now I've applied for a new job and I'm sweating bullets hoping that my new employer doesn't call me into his office to have a little sit down about my dishonesty.

Is there anyway to get a charge like this removed from your record?

Now the complicated part: I got this DUI in Virgina and I spent all my meager savings - about three thousand dollars - trying to fight the charge in court. Of course, I lost... there's no arguing with a breathalyzer test. (My DUI-specific attorney didn't tell me this, preferring to take my money and run...)

Shortly there after I was laid off from work (This wasn't a stellar year for me, btw.) Dejected, broke and a little desperate I decided to move back home - to another state.

Basically this means I skipped out on the commonwealth of Virgina. I didn't take the alcoholic abuse classes or pay the fines associated with my charge.

Since I never intend to live or even drive through VA again - is there perhaps someway to satisfy the commonwealth and have the charge removed? Or will I just have to get used to explaining to potential employers that while I'm not an alcoholic I did have this lapse of judgement way back when?

(And yes, I realize that I'm complete slime for skipping out without paying for my crime and now seeking to have said crime erased from my record.)
posted by anonymous to Law & Government (14 answers total)
You might be in a really tough place there. I had a co-worker who grew up in Hawaii, and received a DUI there. Shortly after, he moved to Oregon without completing his court mandated classes. Oregon didn't really care about what the HI courts wanted him to do, but would also not give him a drivers license. Also, the HI courts told him no classes he would take in Oregon would satisfy them. Short end of this is that he could not get a license anywhere until he moved back to HI and fulfilled his class requirement.

Depending on the state, it may never really come off your record. Although it wont be counted as far as insurance after X number of years, in many states it will still be printed on your record and may come up during employment and other background checks, forever. This is crappy, but what happens when people clammor about getting tough on criminals.

Personally I think you should get references for a really top notch lawyer, ask for a consultation, should be free, and get a better idea of what you should do.

Best of luck.
posted by efalk at 6:10 PM on May 27, 2006

Sidenote: Yes, there is arguing with a breathalyzer test. In many if not all states, the machines have to be regularly inspected and maintained, and the operator has to be regularly trained, and the operator has to observe you for twenty minutes or so to make sure you do not burp or regurgitate and throw off the accuracy of the test ... all of these factors can result in your breathalyzer result being subject to a successful challenge.
posted by jayder at 6:24 PM on May 27, 2006

The first time my employer was okay with it but they were miffed that I hadn't been upfront about the DUI.

Well, one nagging part of my brain says that if they're going to do the whole Experian / FBI thing on you, then the burden is on them to discover the DUI, not you. Some may disagree but I think the employer has no business trying to dig up dirt on you from 4+ years ago unless you're doing something like driving a schoolbus or getting a security clearance... my school of thought says it's better to look out for #1 and get gainful employment and prove your worth afterwards, rather than disqualify yourself and look out for a company you won't even be working for. You've really got nothing to lose. You may find a company that doesn't send out for the records. Where I wouldn't do it is in prestiguous jobs, certain trades, and other professions, or if money is too tight to juggle jobs. I'm not a lawyer but I understand that if you have to get another job, the previous employer is only able to verify the dates you worked (U.S.).

Another idea is to just start your own business, if you know a field well enough, but that's kind of off-the-cuff.
posted by rolypolyman at 6:30 PM on May 27, 2006

Typically, I think they need your permission before a company will run a background check. If the company asks for permission, then that's the time to take the person who wants to hire you aside and explain your situation.

You do probably want to address it before it comes back. The person hiring you may need to make the case for you to HR, and that's more likely to happen if they know in advance and feel OK about it.

Also, I think a potential employer is only going to look back 7 or 10 years, so you only have a little while to wait with most of them.

It might also be possible (though not necessarily advisable) to forget to mention that you ever lived in Virginia. I'm not sure if the state databases are all linked now for purposes of a background search, but it used to be that you'd only look in the databases of states or counties where you thought that the person lived.
posted by willnot at 7:22 PM on May 27, 2006

INAL but I have worked in a facility that provided the manditory education for people who got DUIs. When you moved, you should have contacted the nearest treatment facility so that you could get your requirements transferred to your new state. (People do move, most states will allow a transfer. ) The problem for you is that there has been a lapse of time since you left the state. Although you may want to make it right, you are probably in contemp of court, which depending on the court, could mean major problems for you. If you really want to make it right, the lawyer is probably the best way to go. You still will probably have to take the class where you are, but may have to shell out some major money for the court (as well as possibly some time behind bars, which is why you need the laywer.) If you complete your sentance, some states will wipe the DUI after a number of years, as long as you don't get another.

Good luck.

wife of 445supermag
posted by 445supermag at 7:31 PM on May 27, 2006

You can probably count on the original state putting a hold on your license one of these days for not complying with the terms of your sentence. They will then notify these guys and you'll find it very diificult to drive in any state.

IANAL, just had a close friend go through Hell for doing what you have done. I'd call a an attorney if I was in your shoes.
posted by buggzzee23 at 7:34 PM on May 27, 2006

Now the complicated part: I got this DUI in Virgina and I spent all my meager savings - about three thousand dollars - trying to fight the charge in court. Of course, I lost... there's no arguing with a breathalyzer test. (My DUI-specific attorney didn't tell me this, preferring to take my money and run...)

Actually, that's not true at all. In fact, in Iowa roadside breathalizer tests are not even admittable in court.

In general, you should never submit to a Breathalyzer test unless you're certain you'll pass. They can't force you to test it.

posted by delmoi at 7:40 PM on May 27, 2006

At the very least, figure out a way to deal with the state of VA. If you know an employer will do a background check, talk to them about it. Honestly saying "I'm really ashamed about the DUI" and "I made a really stupid mistake and learned from it" will help, but you need to be able to say that you took care of it.
posted by theora55 at 7:43 PM on May 27, 2006

This is outside of what the questioner is asking, but please don't listen to Delmoi re: breathalyzers, he doesn't know what he's talking about. If you google "implied consent dui refusal" you can find all sorts of information about when to take a test and the penalties for refusing.
posted by greasy_skillet at 7:54 PM on May 27, 2006

greasy_skillet: Oh really? I do believe it depends on the state. Here in CA, you absolutely *can* refuse to take a roadside breathalyzer test. You can choose to have a blood test or a urine test administered at the station (or hospital) instead.

"California's implied consent law applies only to the chemical test given at the police station or at the hospital after a DUI arrest. It does not apply to the handheld PAS machine that officers sometimes ask DUI suspects to blow into prior to the DUI arrest. The PAS test is voluntary for persons 21 years of age and older."

The CVC information is here.
posted by drstein at 9:38 PM on May 27, 2006

"You can choose to have a blood test or a urine test administered at the station (or hospital) instead."

Not quite--this second test (which also could be a breathalyzer btw) is not an alternative to the roadside test. You must take it or else you face refusal charges.

My point (and you help me make it) is that there is an implied consent law in (nearly?) every state. One needs to be aware of this law and when it is triggered before one can make an intelligent decision to refuse a breathalyzer test. To suggest that one should "in general" refuse a breathalyzer is bad advice.
posted by greasy_skillet at 11:34 PM on May 27, 2006

I can't answer the "expunge DUI" question, but maybe I can help another way:
Once/if you get into the new job, make yourself irreplaceable. Be the best damn employee that company has ever had. Then, at a time of your choosing (maybe during a performance review after you have been (p)raised), admit your youthful indiscretion and that you hid it. Explain how no one was injured, however that the punishment was just*, and ask forgiveness for not telling the truth. I doubt an employer would fire you at that point.

Once you have established a reputation for excellence and your resume demonstrates it, include the DUI at the outset.

*I don't think the punishment fits the crime, but don't use that as a defence during your talk.
posted by mediaddict at 7:12 AM on May 28, 2006

(RE the DUI consent argument in thread: In Michigan and Ohio for example, implied consent DUI means if you refuse a field breathalyzer test, they arrest you, take you to the station, do a test there or a blood test at a hospital, and then suspend your license for a minimum of 6 months.) My suggestion is to just not drive in Ohio, their traffic enforcement is, to say the least, Draconian.

I think it would be worth calling a Virginia lawyer for a consultation and ask them: 1) Is it possible to get the state to vacate the DUI charge from my record? 2) Would it be possible to go back to Virginia for a set period of time and pay a fine, and take the alcohol abuse course/driving class/etc?

If you are really sick of being background checked, drug tested, and generally having your privacy invaded, a path of least resistance is to work food service, or work construction (cash-only is best). I've had it with retail and business office environments demanding drug tests, full background checks, and other invasive things during the application process. Those options are not workable for everyone. The other option is to start your own business; a high-risk endeavor that you would have to dedicate all of your efforts towards.

Since this seems to be an issue for you, and if you are set on applying for a job that demands a background check, know that if you can't get the DUI expunged the employer will find out. In this scenario just grit your teeth and be upfront about it, the employer is more likely to be impressed by your candor than by your failure to disclose what is considered a rather big legal offense. Furthermore, that makes it easier to manage. If the interviewer or boss gets to bring it up before you do, they have the upper hand and can lord it over you. But if you bring it up first, you have a chance at minimizing it and explaining it, to wit, "I was young and made a stupid mistake that I regret and am still paying the consequences for." I think most reasonable people would see this as a mature, honest explanation.

Good luck.
posted by tweak at 8:06 AM on May 28, 2006

In general, you should never submit to a Breathalyzer test unless you're certain you'll pass. They can't force you to test it.

In Virginia, if you refuse a breathalyzer, you're basically confessing to being drunk. /regurgitating driver ed instructor >
posted by martinX's bellbottoms at 6:24 PM on May 28, 2006

« Older Bayou's booze: Help me choose   |   Return a digital camera because of a few stuck... Newer »
This thread is closed to new comments.