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  • Home Resources & Technical Articles Pre-Employment Screening Topics National Police Checks Does a DUI Offence show up on a police check in Australia?

    Does a DUI Offence show up on a police check in Australia?

    There are just a few traffic offences in Australia as grievous as that of Driving under the influence (DUI). Although it is called Driving while intoxicated (DWI) in other circumstances, it generally means the same thing.

    DUI offences will show up on a police check and are disclosed on national criminal history checks in accordance with the spent convictions scheme.

    What is a DUI offence?

    Driving under the influence is the offence of operating a vehicle while being intoxicated. It does not matter; how you got intoxicated or the substance that intoxicated you.

    If the Police or other Traffic officer arrest you, they will charge you to Court for a DUI offence.

    How serious are traffic offences in Australia?

    Most people erroneously downplay traffic offences to be minor and less significant offences. However, having a DUI conviction in your criminal history can be damaging.

    DUI offences also include the traffic violation of driving with a BAC level above the limit. Learners and holders of other special licenses must not operate a vehicle with a BAC level above 0.00.

    The fact that DUI offences are potential causes for many other dangerous and fatal accidents on Australia Roads make them very grievous.

    Is DUI considered a criminal offence in Australia?

    DUI offences and those relating to them are not just categorised as serious traffic misbehaviours. They are considered serious offences that are settled in a Local or Magistrate Court. Therefore, the offence will show up on an individual's criminal record and is considered a criminal offence (summary offence in Australia).

    If such offence were part of a series of events that led to a loss of life or serious bodily injury, it would be treated as an indictable offence before the District or Supreme Court.

    There is a general agreement about the severity of a DUI offence in Australia, even though individual legislation for each State and Territory may differ.

    What factors affect a DUI sentencing in Court?

    If the Magistrate or Judge finds you guilty of a DUI offence, they will issue sentencing based on the jurisdiction's legislation. While there is a general prohibition on DUI offences, the Court can impose various punishments and conditions.

    Furthermore, various factors will affect the type and severity of the Court's punishment for a DUI offence. It includes;

    • Circumstances of Aggravation,
    • The Criminal History/records of the defendant,
    • Impact of the offence,
    • Degree of the crime,
    • The type/weight of vehicle the person was driving,
    • The BAC levels of the driver,
    • Resistive actions against a public officer,
    • Other factors the Magistrate deems relevant to the case.

    However, generally, ordinary DUI offences attract punishments of a driver license disqualification between 3 months and 18 months across the States and Territories in Australia. And many factors can determine how very or less severe the penalties are.

    How long does a DUI offence show in a Police Check?

    Having a conviction on your Police/Criminal record can be a dent. While some offences can be wiped or “rubbed” off through some legal programs like diversion programs in Australia, others will remain there for a long time. One of the popular ways that offences are removed from a criminal record is through the Spent Convictions Scheme.

    Depending on your jurisdiction (the scheme), your offences may be wiped after some conditions are satisfied. However, the Judge will only grant this program if the individual records show that they have maintained Good Behaviour for specific periods.

    Do all criminal offences show up in a Police Check?

    All Criminal Offences that you have ever gotten a conviction for will be disclosed in your national criminal history check. It is irrelevant how long ago or the sentencing circumstances; they will remain on your police check.

    Depending on the severity of the offence and it’s stipulated punishments in Court, the records on a police history check remain for as long as a lifetime. The only way a criminal record can get off your criminal record is through specific legal programs. It includes;

    • The Spent Conviction Scheme,
    • Certain violations being decriminalised,
    • Sentence Suspension / Dismissals.

    What shows up in a Criminal Background Check?

    Criminal background checks are a nationwide vetting process in Australia. It has become a helpful medium for agencies, employers to assess the legal dealings of their candidates. The certificate will disclose all the convictions history, including pending charges of the person.

    Any conviction you receive in an Australian Court will show up in your check result. These days, Employers and agencies rely growingly on a police background check certificate to determine how suitable the candidate is for the role.

    There are two possible results for a police check; Either the result comes out with a;

    Disclosable Court Outcomes (DCO) means that the offences or violations the Court deems releasable under the circumstances. Where there is DCO, the Police Criminal record will contain the details of the crime.

    Only notable exclusions or the spent conviction scheme can stop a conviction history from being a DCO. The Disclosure of Criminal records and policy ensures that only releasable/disclosable offences are included in a Disclosable Court Outcome (SCO)

    Generally, the DCO can include;

    • All Criminal Charges, including suspended sentences;
    • All traffic-related criminal offences;
    • All findings of guilt where the Magistrate issues a ‘no conviction’,
    • Pending charges;
    • Court appearances;
    • Served sentences.

    No Disclosable Court Outcomes (NDCO)

    If the State or the Australian legal system can find no criminal records for the individual, or no releasable conviction record, the criminal record check certificate result becomes an NDCO.

    The NDCO may also mean that person has a conviction record that;

    • Was ‘Spent’ (criminal record was legally expunged under the Spent Convictions Scheme), or
    • For some legal programs/actions cannot be disclosed.

    What other Traffic offences show in a Police Check?

    A police character check will also contain any other traffic-related offence that the Court issued a conviction.

    If a Police officer flags a person for Driving at excessive speeds (above the speed limit), they can impose penalties based on an infringement. However, the person can choose to challenge the result of the breach and object to it in the Court.

    The Magistrate will then hear and decide on such matter, and can then;

    • Uphold the objection of the defendant,
    • Uphold the infringement, and adjust the penalties,
    • Find the person guilty and sentence them per the traffic/criminal laws.

    There are lots of traffic offences that can show up in a police background check. As long as the Court records a conviction, it does not matter the impact or seriousness of these offences. Some of the other traffic offences include;

    • Driving above the speed limit,
    • Engaging the Police in a Chase,
    • Resisting a Police warning,
    • Driving with drugs,
    • Disobeying traffic orders in an emergency zone,

    What is the Spent Convictions Scheme?

    The Spent Convictions Scheme applies to most offenders across Australia who have demonstrated a tendency to be of good behaviour. However, this good behaviour must be provable to the Court through their clean conviction records, police records and other recommendations over the "waiting period".

    If the offender shows/maintains Good Behaviour during this waiting period, the Court will remove the "eligible" offence from their conviction records. Usually, this waiting period is;

    • Ten years for adults, or those convicted by courts other than a Juvenile court,
    • Five years for Juveniles, or those convicted in a Youth Court.

    What happens if your offences are spent?

    The spent convictions scheme is a nationwide scheme enforceable in all the States and Territories. If the Court or the Spent Convictions Legislation grants any of your convictions to be spent, such convictions;


    • Are no longer shown in a criminal history check certificate

    Imagine the joy of getting a background check result where there are no convictions. This is one of the first and primary meanings of having your offences spent. You will no longer have to "defend" or explain a conviction you received over ten years ago.


    • You cannot be assessed on a spent record

    Even when your employer or an agency is privy to your spent convictions, they are forbidden from assessing you by them. However, this case can be complicated, especially where such records are directly relevant to the role you are seeking.


    • The no disclosure right

    You are not obliged under oath to reveal details of your spent convictions. If you choose not to, you don't have to disclose the spent convictions even to an employer.

    Generally, except where expressly stated by the law, your spent convictions is as good as having an NDCO on your criminal record check certificate.

    Is a DUI offence eligible for the spent convictions scheme?

    Not all offences are eligible for the spent offences scheme. Indictable crimes or those heard in higher courts are hardly eligible under this scheme due to the long associated imprisonment sentences for indictable crimes.

    The eligible offences under the spent convictions scheme are generally offences with lesser penalties attached. It is impossible to have an offence spent if the offender incurs imprisonment terms higher than 30 months. It does not matter if the imprisonment term was suspended or served.

    A DUI offence without a circumstance of aggravation or other indictments attached to the charge will be eligible for the spent convictions. It means that a DUI offence will stay up to 10 years in your criminal records (for adults).

    Where is a Criminal History Check helpful?

    The criminal history check is used for assessment and knowing more about applicants before the employer offers them the role. For specific positions (for example aged care background checks), the legislation stipulates criminal history checks as a crucial part of the requirement.


    • Paid employment

    The legislation allows employers to interpret a police check result following their internal company's risk mitigation policies. However, whether written or oral, such policies must not contradict the anti-discrimination laws regarding criminal record checks or privacy principles relating to criminal record checks.


    • Volunteers

    NGOs, non-profit organisations and other volunteer services must protect the people they cater to. It includes employing the best means possible to ensure that they recruit the right people for the job. For volunteering services that involve sensitive sectors, volunteers should demand a volunteer police check from their applicants.


    • Licenses and Accreditations

    The licensing agency will require a criminal history check when you apply for specific licenses. It includes where the permit is for a firearm license, Real Estate background checks, transport operator, and other essential or sensitive sectors of the economy.

    Will a DUI offence affect my Prospects?

    Having a DUI conviction record on your criminal history check can be a significant drawback in your career. It even gets worse if you seek roles related to the transport industry or as a driver. With a DUI conviction, it won't be easy to convince employers that you are suitable (stable) for the job.

    Employers can access criminal history check results based on the inherent requirement of a job and how they consider it relevant to the role. Therefore, with a DUI offence, it may be not be possible to get a position as;

    • Truck driver,
    • Commercial Passenger Vehicle (CPV) driver,
    • School bus driver,
    • Driving instructor,
    • Commercial Bus driver,

    And other roles relevant to driving.

    Police Checks for Driver Accreditation

    Driver accreditation is a nationwide and essential assessment program for drivers who seek commercial duties. One of the requirements for driver accreditation is a police check for driver accreditation and licensing. And a DUI conviction is one of the records that may affect a Driver's chances of obtaining a commercial license.

    Furthermore, if your DUI offence led to other crimes like;

    • Assault offences,
    • Manslaughter,
    • Murder,
    • Destruction of vehicles,
    • Or other detriments to people,

    The assessing authority may interpret it as gross acts of irresponsibility that can easily affect their other activities.

    Penalties for a DUI offence

    Criminal history checks reveal the details of the crime and the penalties that the Court imposed. If the Court pronounces you guilty of a DUI charge, it will impose various penalties as part of the sentencing as is stipulated in the legislation.

    Some of the penalties the Court imposes includes;


    License disqualification

    Based on the impact or severity of the offence, the Court can impose license disqualifications for up to 3 years. Once your license is disqualified, you are forbidden from operating any vehicle publicly.

    However, a person with a license disqualification may apply under some conditions for "special licenses."


    Imprisonment term

    The Magistrate may issue an imprisonment term not lesser than the minimum term stated in the legislation. The Court imposes an imprisonment term where it considers it an appropriate punishment for the degree of the offence.


    Fines

    The Court will impose a fine on DUI offenders most of the time. The court imposes the fine in terms of penalty units. And the money equivalence of penalty units varies depending on the State/Jurisdiction.


    Car impoundment

    The Magistrate may also order that the vehicle be impounded for a period as a means of punishment. It is common for the Court to impound vehicles if repeat offenders or where the offence has an aggravating circumstance.

    How can I obtain a criminal history check?

    Individuals

    If you are an individual then you can apply for a national criminal history check online via Australian National Character Check’s online police check application form. The results are dispatched via email.

    Business and Enterprise Customers

    Business and Enterprise customers are able to sign up to ANCC’s business portal where they can order, manage, track and view candidates’ criminal history check results on their business portal. Organisations will undergo a process for approval prior to being granted access to ANCC’s business portal.

    ANCC sends an invite to the applicant to complete their criminal record check online and handles the application and informed consent form. Contact ANCC’s business and enterprise partnerships team today to enquire about setting up a business portal for your organisation.

    Sources

    Law Access NSW (Driving and Criminal Records) - https://www.lawaccess.nsw.gov.au/Pages/representing/driving_offences_and_crime/driving_and_crime_after_court/driving_and_criminal_records.aspx

    Australian National Character Check (DUI Penalties Across Australia) - https://www.australiannationalcharactercheck.com.au/DUI-penalties-Australia.html

    Legal Services Commission of South Australia (Drink Driving and the Law Factsheet) - https://lsc.sa.gov.au/cb_pages/drinkdrivingfactsheet.php

    Legal Aid WA (Drink and Drug Driving) - https://www.legalaid.wa.gov.au/find-legal-answers/crime/traffic-offences/drink-and-drug-driving

    Australian Securities and Investments Commission (Penalty Unit Values) - https://asic.gov.au/about-asic/asic-investigations-and-enforcement/fines-and-penalties/

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