I get at least one or two phone calls per week from someone wanting to know whether a Kansas DUI will show up on a criminal background check. The answer is almost always, “It depends.” These days, 90 percent of all employers conduct a criminal background check before hiring someone. Because of internet and computer databases, they are very easy to do. In fact, many businesses are doing background checks on employees that have worked for them for years and done a great job just because they can. You can’t even get a job delivering pizzas for Domino’s without first passing a criminal background check, and you get to pay for it yourself. Criminal background checks are also extremely common before you can rent an apartment.
The reason that I say, “it depends” with respect to whether a Kansas DUI arrest, diversion or conviction will appear on a background check is because it depends on who is doing the looking, what database they are looking at, what they are looking with, and what they are looking for. If law enforcement (police or prosecutors) is doing the background check, they have access to the NCIC (National Crime Information Center) database, which is the FBI’s records. This is sometimes known as the “Triple I” and where the term “RAP Sheet” comes from (Reports of Arrest and Prosecution). Everytime you have ever spoken with a police officer is likely to be recorded there. Even if you were arrested for a DUI and were acquitted (found “not guilty”) or the case was dismissed for lack of evidence, it will be on your NCIC record. However, this type of a background check is rare because not just anyone can access this information. If you are applying for a job in law enforcement or with a state lottery board or some job that requires a security clearance, then they may run a background check on the NCIC and any Kansas DUI arrest, diversion or conviction will be there, as well as a lot of other information about you.
Most employers will hire a private company to do the criminal background check. Private companies do not have access to the NCIC. They rely on other databases which are not as complete. Which is why whether your Kansas DUI arrest will show up in a background check depends on where they are looking. The private companies access public record databases like county criminal records, state criminal records, the National Sex Offender Registry, etc. In other words, they have to go specifically to each of those databases, for each county you have lived in, or to each state database in order to get the records. So, unless they know where you have lived or what county you were arrested in, they may likely not find the record. Also, not every county has a good database, and some only computerized their database in recent years. Finally, these databases often won’t include municipal court DUI cases from Kansas, because the DUI occurred and was prosecuted in a Kansas city court, not a county court. There are national databases of arrest, diversion and conviction information but not all states participate and/or don’t provide complete information.
The Federal Fair Credit Reporting Act limits some background checks by third parties (private companies) to 7 years. However, that restriction does not apply to jobs that pay more than $75,000. Some states have more restrictive laws, so how far they can go back depends on these factors, as well.
Whether an employer will find out about a previous Kansas DUI also depends on what information they have about you. I already discussed them using your former places of residences, but they also need other identifying information. If they are searching under your married name, they may not see the case you caught under your maiden name. Social Security Numbers, birthdates, middle names, addresses and other identifying characteristics may or may not come in to play and, again, the information in the database may not be complete or correct and so a prior could be missed or, worse, a prior DUI could be attributed to you that actually belonged to someone else. Typographical errors and other errors (i.e., acquittals being noted as convictions) are not uncommon.
If your new job may involve driving or a company car, you can just about bet that they will want to check your driving record. How far back a driving record goes depends on the state. In Kansas, it is usually 3 years for this type of a Kansas driving record check. The only thing that will be reported on a driving record with respect to a Kansas DUI case is an administrative suspension, diversion or conviction. Each state in America belongs to the Interstate Driver’s License Compact and share information from state to state about DUI suspensions and convictions.
Another question I get a lot is what to put on a job application or re-certification application for certain professions like nursing, medical doctors, pilots, etc. Again, of course, it depends. This is where is pays to be a very careful reader in terms of what the application is asking. In the not too distant past, most job applications would ask “Have you ever been convicted of a felony?” Most DUI cases are misdemeanors so the answer would be “no” for most people. However, in recent years, and with the explosive proliferation of criminal background checks, it seems more and more applications are casting a much wider net with respect to inquiries about prior criminal history. If the application asks whether you have ever been convicted of a “crime”, “criminal offense” or misdemeanor, the answer may be “yes” if you were actually convicted. However, diversion is not a conviction under Kansas DUI law. So, if you were placed on diversion and the question asks “Have you ever been convicted…” you can answer “No”. Some applications ask, “Have you ever been arrested…” which is casting a really wide net because this would include situations where people were arrested but never formally charged, where people were acquitted and situations in which the charge was eventually dismissed. If you were arrested, i.e., put in handcuffs, you may have to answer “yes”. If you received a Kansas DUI ticket in the mail and were never formally arrested you could put “No”. My experience in representing doctors, nurses and other professionals who are required to submit an annual recertification application is that they can get in more trouble with the state licensing boards for not disclosing an arrest, diversion or conviction than they can for actually getting the DUI. In other words, a state licensing board usually won’t take any action just because of a first-time DUI arrest or a Kansas DUI diversion. A second-time case can draw some additional scrutiny from a licensing board and they may recommend some substance abuse treatment but they will usually work with the licensed professional. A felony DUI in Kansas can mean trouble for a licensed professional.
Expungement is a process which is available in Kansas whereby a prior arrest, diversion or conviction may be removed from a person’s record and treated as though it never happened (which means it would not have to be listed on most applications and theoretically would not appear on most criminal background checks.) Kansas is one of the few states that have an expungement process and which give people who have stayed out of trouble a chance to clean up their records. For most crimes in Kansas, a prior case can be expunged after 3 years. Naturally, DUI’s are the exception. A Kansas DUI can be expunged after 10 years. Previously, DUI cases could never be expunged in a person’s lifetime. Before that, a Kansas DUI could be expunged after 5 years. So, today the law is 10 years from the time you get off diversion or probation before a DUI can be expunged. Obviously, this is subject to change.
All of the foregoing underscores an important point: a DUI case will have serious ramifications on your future, even if it is a first-time misdemeanor event. You can expect a criminal background check for just about any job you apply for, and to get into colleges and graduate schools, and to keep the job or professional license that you already have. This is why it is essential that each person charged with a DUI in Kansas get the best representation that he or she can find, because you only get one chance to do it right. Every single one of these DUI cases is important and every single one deserves to be fought. You have to get the best Kansas DUI lawyer you can locate and that person has to flip over every rock, know what to look for underneath it, and what to do with it if it is there. Anything less can haunt you for a long time and cost you a lot more than the cost of effective representation in the first place.