What to consider when job candidates disclose a DUI on their applications

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By Marcelo Torricos, attorney, Bannister Wyatt & Stalvey

Author’s note: Before diving into this column, I would like to clearly establish that I believe driving under the influence is a serious, reckless, and selfish offense. With that being said, I do believe there are inequalities in the legal system surrounding DUIs.

DUIs are like broken glass — they shatter, and the effects are far-reaching, especially in regards to employment. As the labor pool continues to shrink, business owners should rethink hiring policies if they strictly do not hire folks with a DUI on their records. While I am not an employment attorney, I am a criminal defense attorney and have dealt with cases involving decisions like this before.

Employers have every right not to hire candidates who disclose a DUI on their applications. But, since the job market is incredibly competitive, business owners have much else to consider if they have a job candidate who discloses a DUI on his application, lest they make an uneducated decision.

Mistakes can be made in DUI cases. And these mistakes can make a nonimpaired person come across as impaired and can exacerbate the situation. There is a difference between someone who blows a 0.08 percent blood alcohol content and someone who blows a 0.12 or 0.18. The latter most likely made poor decisions despite knowing what his body was capable of and what could potentially be a dangerous decision. 

Allow candidates the chance to prove their innocence. Candidates are often removed from consideration before they have a chance to prove they have not committed a crime. Through professional, thorough interviews, employers will become familiar with who the candidate is as a person and will be in a good position to decide whether the candidate would be a quality employee.

Request references. Calling candidates’ references and inquiring about their character and work ethic is another good tactic in determining whether they will be good employees, regardless of their records. Candidates with strong histories of production who are first-time criminal offenders should be given the benefit of the doubt.

DUIs don’t discriminate. While a DUI charge involves arrest and is a crime, it can happen to anyone, at any time and place. This is one of the few charges out there that does not require intent to commit the crime. People are often charged and even convicted of a DUI when they did not have internal indications that they were under the influence. There are people who do not feel the effects of a 0.08 blood alcohol content; there are some who do.

If employers do not hire a candidate based on a DUI arrest, no one is going to bat an eye. However, from my legal perspective, the issue should not be black and white. The candidate’s character and history should outweigh the immediate prejudice of the charge.

If I am ever tasked with hiring and firing decisions at my firm, a person would not automatically be disqualified due to a DUI or automatically terminated because of one, either. I am not saying it would not be a part of my consideration and a part of my decision-making process; however, it would not be the sole factor in my decision.

Marcelo Torricos is an attorney at Bannister Wyatt & Stalvey. He focuses a significant portion of his practice on criminal defense and family/domestic law. 

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