The Expunged DUI and the 'Ever Arrested' Question
Daniel applied for certification of fitness in January 2025. The application asked: 'Have you ever been arrested, charged, or cited for any violation of law?' In 2019, during his second year of college, Daniel was arrested for DUI after a traffic stop; his breath test showed 0.09. The charge was nolle prossed in 2020 after he completed a pretrial diversion program, and the arrest was expunged under Georgia law in 2022. Daniel answered 'No' and did not mention the incident. In March 2025, a Fitness Board investigator sent him a letter noting that a background check had revealed a 2019 arrest and asking for an explanation. Daniel believes the expungement legally allows him to answer 'No' and that the diversion was not a conviction. He has no other criminal history, has completed 40 hours of community service since, and has held the same paralegal job for three years.
1. Did the expungement make Daniel's 'No' answer accurate? Explain the difference between the legal effect of expungement and the scope of a bar fitness question.
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Not automatically. Expungement under Georgia law restricts public access to records and, in some contexts, permits a person to answer 'no' to employment questions about arrests. A bar fitness application is not an ordinary employment application. The Board asks about conduct bearing on honesty, trustworthiness, and respect for law; the word 'ever' is broad, and the applicant's own knowledge-not the clerk's file-triggers the duty to disclose. Even a sealed or expunged arrest can be disclosed, and the Board may consider the underlying conduct and the applicant's candor about it.
Daniel's subjective belief that diversion was not a conviction misses the question: it asked about arrest and charge, not conviction. If the application contained an instruction to disclose expunged matters, his answer is plainly wrong. Even without such an instruction, the safer and ethically required course is to disclose and explain. The key distinction is that expungement affects records, not the applicant's duty of candor to the bar.
2. What should Daniel do now, and how should the Board weigh the original DUI against the nondisclosure?
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Daniel should immediately send a written amendment to the Fitness Board. He should identify the 2019 arrest, the DUI charge, the pretrial diversion, the nolle prosequi, and the 2022 expungement order; attach certified copies; and explain why he answered 'No' without blaming the Board or concealing the reason. He should acknowledge that the duty is broad and that he is correcting the record.
The Board will weigh the DUI and the nondisclosure separately. The DUI is old, isolated, and apparently followed by completion of diversion, steady employment, and community service; those facts support present fitness. The nondisclosure, however, is a candor issue and may be more serious than the arrest itself. If the Board concludes he intentionally concealed a recent arrest, it may deny certification or impose conditions. If it finds a good-faith misunderstanding promptly corrected, the incident may not be disqualifying. He should not continue to argue that expungement entitled him to answer 'No.'
3. What factors should the Board consider in deciding whether Daniel is presently fit despite the 2019 conduct?
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Georgia's fitness analysis is forward-looking. The Board considers the nature and seriousness of the conduct, the applicant's age and circumstances at the time, recency, whether there is a pattern, candor and cooperation, evidence of rehabilitation, and any restitution or consequences. A single college-era DUI with a 0.09 breath test, resolved through diversion, is not automatically disqualifying. Mitigating facts include no other criminal history, completion of diversion, expungement, steady employment, community service, and a prompt correction. Aggravating facts include the arrest being within the last six years and his initial choice not to disclose it.
The Board will ask whether he accepts responsibility and whether there is any risk of recurrence, including any substance-use issue. Daniel should provide evidence of completed substance-use education and references. The Board must decide present fitness, not punish past conduct.