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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16809
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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PLEASE help! My husband was scheduled to begin a new job and

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PLEASE help! My husband was scheduled to begin a new job and 4 days prior to his start date, he was told he was not going to be able to start because his criminal background check showed a DWAI from February, 2006. He was originally charged with DWI, but it was reduced to DWAI. He had to attend weekly classes and completed them with no issues. He has not had any problems with alcohol or the law since that date. The DWAI occurred in NY State and from what we can find all over the internet, it is a traffic infraction, NOT a misdemeanor. It is listed as a misdemeanor so we know we have to get it corrected. Before we call the courthouse I want to know if what happened to him is legal. Should a charge that is over 7 years, that is not a misdemeanor or a felony be the sole reason for withdrawing an employment offer? It's absurd to me....
Submitted: 11 months ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 11 months ago.
Hello,

Thank you for requesting me. I am leaving shortly and won't be able to answer this for you until early this afternoon. I will tend to this before lunch, however.

Thanks for your patience.
Customer: replied 11 months ago.

Not a problem at all. Here is more information from my husband. I apologize for any duplicated info but I wanted you to have it. He wrote it out in anticipation of finding an employment attorney if needed:


 


I am writing you because I have been informed by a prospective employer that an offer for employment will be rescinded due to adverse information found on a criminal background investigative report. The offense occurred greater than seven years ago, and there have been no further blemishes at all since then.


 


I was informed via telephone conversation with a human resource specialist that the reason why the offer was being rescinded was because I did not answer a question truthfully on the job application. The question was stated as follows: “Have you ever been arrested for or convicted of a crime (including misdemeanors and felonies) that has NOT been annulled by a court?”. The offense that I was actually charged with was driving with ability impaired (DWAI), which in the state of New York (where the infraction occurred), is not considered a crime, misdemeanor or felony, rather, a traffic infraction. Thus, my feeling was that I did not answer the question deceptively.


 


I had already been screened by employee health, and had pretty much gone through the entire pre-employment process. I was advised five days before orientation that the offer would be withdrawn on the basis stated above. I had already found a place to live in the area, which is approximately 130 miles from my current residence, and would've necessitated relocation (the position is located in the state of New Hampshire). I paid the landlord a deposit of $1950 to reserve the house. After explaining the situation, he agreed to refund me all but $500 of the deposit, as he had withdrawn his craigslist ad from the Internet after I paid the deposit.


 


The HR specialist at the hospital did say that I would have an opportunity to challenge the findings presented by the criminal background company. However, if the report states that DWAI was the offense, I am not inclined to question it because that offense in fact did occur. So, I'm not sure what good that process will do. I was told I should receive a letter in the mail with instructions sometime in the upcoming week.


 


In the two days subsequent to receiving this news, I made repeated attempts to contact the HR specialist by e-mail and voicemail to discuss the matter further. All of those attempts were ignored; I received no call back or e-mail response from them whatsoever. Ultimately I did find out through the employment recruiter that their VP had spoken with the HR specialist, who basically told them all they were going to do was send the letter presenting me with the opportunity to challenge the reports findings. I would not be eligible to attend orientation as scheduled.


 


I feel that it is grossly unfair that I am being denied this opportunity. I was laid off from my previous employer October 3, so this last-minute change in plans is particularly devastating. I'm reaching out to you because I don't know legally what recourse I may have, if any. However it does seem that the treatment I have received was unfair, and in a sense, rather cruel as the “bad news” was delivered just a few short days before my scheduled orientation.

Expert:  Zoey_ JD replied 11 months ago.

Hi,

Thanks for the additional information. Some of this is really a matter for an employment lawyer rather than a criminal lawyer, because it's with an employment lawyer that your husband would have to fight this denial of his employment.

I can confirm, however, that he should fight it. An Impaired is quite definitely a violation and not a crime. It's a criminal violation rather than a traffic infraction, however, which, along with one other type of NYS violation, cannot be sealed. Other violations would seal automatically in a year and your husband's prospective employer would have not been able to find it, unless he was a government employer. But because a second conviction within the lookback period can bump a second impaired up to a DWI, the state will not seal this particular offense. That likely caused the whole problem, because it's likely that your prospective employer doesn't realize what your husband been convicted of is a violation and not a crime.

Your husband can get a certificate of disposition which is official proof of what he was convicted of which should say he was convicted of an impaired. He can't get this over the phone. Someone would have to get it for him from the County Clerk's Office where he was convicted. He could retain NYS lawyer to do this or send someone else he knows to do it with a notarized letter from your husband that has have authorized this person to pick up his certificate. That person will need your husband's full name and date of birth, or his docket number or date of arrest. He'll have to bring a photo ID to prove his identity and $10 in cash for the certificate, because the state will only take exact change. Armed with that, an employment lawyer and a copy of the VTL impaired law, he may be able to save the situation.

To discuss that aspect of it in more depth I would suggest posting another question in our employment law section.

Best of luck with this.

Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16809
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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