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Found not guilty re: misdemeanor DUI. Should I answer "yes" to conviction on background check form OF-306, federal employment?

Portland, OR |

I'm undergoing a pre - employment background check for a federal agency . I was convicted of a DUI , appealed the decision and later found not guilty under a jury trial . The background check form states : " . . . your answers should include convictions resulting from a plea of bolo contender ( no contest ) , but omit . . . any conviction set aside under the Federal Youth Corrections Act or similar state law , and ( 5 ) any conviction for which the record was expunged under Federal or state law . During the last 7 years , have you been convicted , been imprisoned , been on probation , or been on parole ? " My record has not been expunged or set aside . Obviously , I would prefer not to list the offense but wish to remain truthful since I was in fact * initially * convicted . Thank you for your answers !

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Attorney answers 5


While this issue relates to employment law, you're likely to find a more concrete answer if you post on the Criminal Law section of Avvo, or otherwise seek the advice of your prior criminal defense attorney who may be able to advise you.

If you were convicted, appealed the decision to the Court of Appeals, then had the case remanded for another jury trial in Circuit Court where you were found not guilty, you shouldn't have been convicted at all and thus the conviction shouldn't be on your record. Of course, "shouldn't" and "isn't" are very different things, as the case file is likely to be discovered in any event pursuant to a background check, which you can be assured any federal employment position will require.

You might consider attaching a document explaining all of this, in the interests of full disclosure, but if you'd prefer not to get into it at all, you should hire counsel to ensure that you're not committing an additional crime (i.e. false swearing) by omitting the information.

Again, a criminal defense lawyer will likely be better suited to formally advise you.

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I've change the category for you. As I understand it, your conviction was reversed by an appellate court, you had a new trial, and were acquitted. This is all one case, and it is the last result that counts. You were not convicted.

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In the scenario you describe, your initial conviction was reversed. That to me is a version of "set aside," so it seems like if that was your only conviction you can answer no. However, it may be wiser to explain the reversed conviction, rather than answering no, having your prospective employer find out about it (an appellate reversal generally results in a published, public opinion) and not hire you for non-disclosure. Sounds like you had some good lawyers involved -- give them a call (your appeals and trial lawyers) for their opinions. Lawyers have special duties to former clients, and we like hearing from them. I do, anyway. Good luck!


It looks like you may have omitted some of the categories that might actually help guide you here, but perhaps the form is just not very well drafted. I completely agree with Mr. Kenyon. As matter of criminal law this was all one single case and you have never been convicted because the judgment of the trial court was reversed on appeal. You do not have an expunged conviction because you have no conviction at all.

You can truthfully answer the question "No." Whether something will turn up on a background check that needs explaining to a prospective employer I do not know. Perhaps an explanatory letter from your trial or appellate attorney would be a good thing to have on hand in case of need.

Also, I would consult an Oregon attorney about getting your arrest and court records expunged, if that is possible under Oregon law. Otherwise this will remain a source of confusion and difficulty for you despite the positive outcome.


I agree with Mr. Oberdorfer. From what you've described, if this is your only conviction and it was overturned (via the court of appeals, who granted you a new trial, which you won), then this does not count as a conviction. However, like Mr. Oberdorfer says, it may be wiser to explain this in your application, rather than letting your employer be surprised by something they find in a background check.

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