If you have a security clearance and get arrested for Driving under the Influence (“DUI”), it won’t take you long before you start wondering if you have just jeopardized your livelihood by getting arrested, particularly if there is reason to believe you are guilty. In short, you need to know how a DUI arrest or conviction affects your security clearance. It would be impossible for me to cover the effects on every level of access to classified information so I just want to provide a brief primer on the subject. If you get arrested for DUI and have a security clearance, you need to hire a DUI lawyer with specific experience in this matter.
The good news first, it is not a deal-killer. A typical misdemeanor DUI arrest or conviction is highly unlikely to result in automatic revocation of your clearance. Likewise, an isolated incident isn’t likely to be the sole reason a person fails to maintain continued eligibility when your clearance comes up for review. In fact, you may not have to officially address this problem until your clearance is up for review. This is most likely to first time you will have to address the issue. With that in mind, I do believe it is important for people to know what impact it may have.
According to the Department of State, there are thirteen (13) adjudicative guidelines for all people who require access to classified information. These guidelines are codified in Chapter 32, Section 147 of the Code of Federal Regulations. In my opinion, a DUI could be relevant in five (5) of those guidelines. Although one incident can cross these adjudicative guidelines, the government has taken a “whole-person” approach to the adjudicative process so a person is unlikely to be disqualified unless the conduct “reflects a recurring pattern of questionable judgment, irresponsibility, or emotionally unstable behavior.” 32 E.C.F.R. § 147.2(d). Now, let’s look specifically at the applicable guidelines.
Guideline E- Personal Conduct.
The concern is that conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness to comply with rules and regulations can raise questions about an individual’s reliability, trustworthiness and ability to protect classified information. What does this mean? It may seem risky, but in my opinion, you should immediately disclose an arrest to your employer and remain truthful regarding any questioning about the incident. With that said, respectfully decline to incriminate yourself. An arrest of any kind can be seen as a reflection of poor judgment, but this guideline primarily addresses concerns regarding concealment or falsification of information. While you shouldn’t conceal information from your employer, you do want to be careful about admitting things that can be used against you. It is a delicate balance but how you conduct yourself after the arrest affects your security clearance as much as the arrest itself.
Guideline G- Alcohol Consumption.
The obvious concern is that excessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual’s reliability and trustworthiness. The meaning of this is fairly obvious when you are talking about a DUI. In fact, the guideline specifically states that driving under the influence is a security concern. So, what mitigates this? 1) so much time has passed and the incident was so isolated that it doesn’t cast doubt upon your reliability, trustworthiness, or judgment; 2) successful completion of an inpatient or outpatient rehabilitation program; 3) frequent attendance at Alcoholics Anonymous meetings; or 4) abstaining from alcohol. If your DUI was an isolated incident then the guidelines take that into consideration. Likewise, if you are experiencing larger dependency issues, the government wants to see that you are taking steps to address them.
Guideline H- Drug Involvement.
The concern here is the same as it is with alcohol, which is that improper or illegal involvement with drugs raises questions regarding an individual’s willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, thereby increasing the risk of the unauthorized disclosure of classified information. What does this mean? I think this guideline is also fairly intuitive, either illegal or improper drug use, even if it doesn’t result in a DUI or other criminal allegations, presents a security concern. The mitigating factors are similar to excessive alcohol use and emphasize the importance of addressing dependency issues.
Guideline I- Emotional, Mental, and Personality Disorders.
The concern is that emotional, mental, and personality disorders can cause a significant deficit in an individual’s psychological, social and occupation functioning. These disorders raise a security concern because they may indicate a defect in judgment, reliability, or stability. How does a DUI implicate this guideline? Mental health providers understand that many types of emotional or mental disorders manifest themselves as dependency issues. The death of a loved one, a divorce, bankruptcy, or any major change in your life can have a impact that is difficult to fully appreciate while you are experiencing it. If you are turning to substances or alcohol as a coping mechanism then you need to recognize the need for help.
Guideline J- Criminal Conduct.
The security concern is that a history or pattern of criminal activity creates doubt about a person’s judgment, reliability and trustworthiness. A single serious offense, such as DUI manslaughter, would certainly demonstrate a significant security concern; however, an isolated lesser offense is not much of a concern. The government would be more concerned about a continued pattern of criminal conduct that demonstrates vulnerability, poor judgment, and lack of trustworthiness. What mitigates evidence of criminal behavior? Some things that mitigate the existence of criminal behavior are: 1) the passage of time demonstrating an isolated incident; 2) acquittal; or 3) evidence that the factors leading to the criminal act are no longer present.
I can’t emphasize enough that being arrested, or even convicted of a misdemeanor DUI, alone is highly unlikely to result in the loss of your security clearance. In my opinion, if keep your employer aware of your case, undergo a dependency evaluation and comply with any recommendations, then you have a good chance of keeping your clearance. With that in mind, you will have to be prepared to readdress it when your clearance is up for renewal. With the government’s “whole person” approach, if it was truly an isolated incident and not reflective of your overall personal character then you will have an opportunity to demonstrate this.
If you are facing DUI charges and have a security clearance, contact me at Luke Law and put me to work for you. You can reach me at 904-637-2700 or nathan@lukelaw.com. Luke Law, LLC is located in Orange Park, Florida, and is conveniently located near Green Cove Springs, Middleburg, and most areas in northeast Florida. I am also available to travel to you to discuss your legal matters.
*Disclaimer: This blog post is not intended to be legal advise. We highly recommend speaking with an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*