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Security Clearances and DUI

About Richard Lawson

Have you been arrested for DUI in Georgia and have a security clearance?

Will a DUI arrest in Georgia affect your National Security Clearance?

Will your criminal arrest in Georgia have an affect on your Security Clearance?

A criminal conviction or even an arrest can have a significant impact on your long-term career goals.  This is especially true if you are a federal employee, member of the Armed Forces, expert or consultant to a federal agency, or a government contractor requiring security clearance.  Security clearance is only granted after a lengthy background investigation has been conducted to determine the individual's strength of character, trustworthiness, honesty, reliability, discretion, and sound judgment.

The different levels of security clearance are as follows:

Confidential. This is the lowest level of security clearance and refers to material, which, if improperly disclosed, could be reasonably expected to cause some measurable damage to national security.

Secret. The unauthorized disclosure of secret information could be expected to cause serious damage to national security.

Top Secret. This material could be expected to cause exceptionally grave damage to national security if improperly disclosed.

Need-to-Know. Need-to-know can be either a formal or informal determination. Formal need-to-know information that requires a special access authorization exists within Sensitive Compartmented Information (SCI) and Special Access Programs (SAPs).

Sensitive Compartmented Information. This encompasses several categories of compartmented information and the agency controlling the SCI must grant the special access authorization.

Special Access Program. This is a program established for a specific class of classified information that imposes safeguarding and access requirements that exceed those normally required for information at the same classification level. The very existence of certain SAPs can be classified.

The Bureau of Human Resources initiates a security clearance application only after a conditional offer of employment has been granted for a position requiring a security clearance.  An individual will be required to fill out a SF86 Security Clearance Questionnaire, or the electronic version, the Electronic Questionnaire for Investigations Processing.  The application requests personal identifying information regarding residence, employment history, and education; family and associates; foreign connections; arrests; illegal drug use or involvement; financial debts; mental health history and counseling; alcohol counseling; military service; civil court actions; and organizations you have belonged to.

The questionnaire will then be submitted to the Department of State's Office of Personnel Security and Suitability where it will be reviewed and entered into a case management system.  Record and fingerprint checks will be completed.  A Department of State investigator will verify all of the information submitted by the applicant and will contact current and former neighbors, employers, classmates, law enforcement agencies as well as references provided by the individual.  The investigator will also conduct a face-to-face interview with the applicant. Some federal clearances for sensitive compartment information and other special access programs require a polygraph screening.

What happens after a person with a security clearance reports an arrest:

The access determination will hinge upon a consideration of certain guidelines that were developed to determine the responsibility, emotional stability, and integrity of the individual.  The “whole-person concept” was designed to examine a sufficient period of a person's life to determine the security risk of the individual by carefully weighing the adjudicative guidelines along with certain relevance factors. The Adjudicative Guidelines for Determining Eligibility for Access to Classified Information (found at http://www.state.gov/m/ds/clearances/60321.htm) are as follows:

Guideline A: Allegiance to the United States

“An individual must be of unquestioned allegiance to the United States. The willingness to safeguard classified information is in doubt if there is any reason to suspect an individual's allegiance to the United States.” Involvement in acts that could be considered treasonous or terroristic or association or sympathy for persons or organizations that advocate or threaten those acts could raise a security concern.

Guideline B: Foreign Influence

“Foreign contacts and interests may be a security concern if the individual has divided loyalties or foreign financial interests, may be manipulated or induced to help a foreign person, group, organization, or government in a way that is not in U.S. interests, or is vulnerable to pressure or coercion by any foreign interest. Adjudication under this Guideline can and should consider the identity of the foreign country in which the foreign contact or financial interest is located, including, but not limited to, such considerations as whether the foreign country is known to target United States citizens to obtain protected information and/or is associated with a risk of terrorism.”

Guideline C: Foreign Preference

“When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States.”

Guideline D: Sexual Behavior

“Sexual behavior that involves a criminal offense, indicates a personality or emotional disorder, reflects lack of judgment or discretion, or which may subject the individual to undue influence or coercion, exploitation, or duress can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. No adverse inference concerning the standards in the Guideline may be raised solely on the basis of the sexual orientation of the individual.”

Guideline E: Personal Conduct

“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. Of special interest is any failure to provide truthful and candid answers during the security clearance process or any other failure to cooperate with the security clearance process.

The following will normally result in an unfavorable clearance action or administrative termination of further processing for clearance eligibility:

(a) refusal, or failure without reasonable cause, to undergo or cooperate with security processing, including but not limited to meeting with a security investigator for subject interview, completing security forms or releases, and cooperation with medical or psychological evaluation;

(b) refusal to provide full, frank and truthful answers to lawful questions of investigators, security officials, or other official representatives in connection with a personnel security or trustworthiness determination.”

Guideline F: Financial Considerations

“Failure or inability to live within one's means, satisfy debts, and meet financial obligations may indicate poor self-control, lack of judgment, or unwillingness to abide by rules and regulations, all of which can raise questions about an individual's reliability, trustworthiness and ability to protect classified information. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. Compulsive gambling is a concern as it may lead to financial crimes including espionage. Affluence that cannot be explained by known sources of income is also a security concern. It may indicate proceeds from financially profitable criminal acts.”

Guideline G: Alcohol Consumption

“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.”

Guideline H: Drug Involvement

“Use of an illegal drug or misuse of a prescription drug can raise questions about an individual's reliability and trustworthiness, both because it may impair judgment and because it raises questions about a person's ability or willingness to comply with laws, rules, and regulations.”

Guideline I: Psychological Conditions

“Certain emotional, mental, and personality conditions can impair judgment, reliability, or trustworthiness. A formal diagnosis of a disorder is not required for there to be a concern under this guideline. A duly qualified mental health professional (e.g., clinical psychologist or psychiatrist) employed by, or acceptable to and approved by the U.S. Government, should be consulted when evaluating potentially disqualifying and mitigating information under this guideline. No negative inference concerning the standards in this Guideline may be raised solely on the basis of seeking mental health counseling.”

Guideline J: Criminal Conduct

“Criminal activity creates doubt about a person's judgment, reliability and trustworthiness. By its very nature, it calls into question a person's ability or willingness to comply with laws, rules and regulations.”

Guideline K: Handling Protected Information

“Deliberate or negligent failure to comply with rules and regulations for protecting classified or other sensitive information raises doubt about an individual's trustworthiness, judgment, reliability, or willingness and ability to safeguard such information, and is a serious security concern.

Guideline L: Outside Activities

“Involvement in certain types of outside employment or activities is of security concern if it poses a conflict of interest with an individual's security responsibilities and could create an increased risk of unauthorized disclosure of classified information.”

Guideline M: Use of Information Technology Systems

“Noncompliance with rules, procedures, guidelines or regulations pertaining to information technology systems may raise security concerns about an individual's reliability and trustworthiness, calling into question the willingness or ability to properly protect sensitive systems, networks, and information. Information Technology Systems include all related computer hardware, software, firmware, and data used for the communication, transmission, processing, manipulation, storage, or protection of information.”

Disqualifying Conditions - When a Clearance is revoked or not granted in the first place:

Because the individual will be granted access to the nation's secrets, the national security interests of the United States are paramount in the decision-making process. In evaluating the relevance of certain potentially disqualifying conditions, the following factors are taken into account:

  • The nature, extent, and seriousness of the conduct; the circumstances surrounding the conduct, to include knowledgeable participation;
  • the frequency and recency of the conduct;
  • the individual's age and maturity at the time of the conduct;
  • the extent to which participation is voluntary;
  • the presence or absence of rehabilitation and other permanent behavioral changes;
  • the motivation for the conduct;
  • the potential for pressure, coercion, exploitation, or duress; and the likelihood of continuation or recurrence.

The purpose of the investigation is to determine the individual's suitability and fitness for receiving a security clearance.  The adjudicator is attempting to predict future conduct based on past and present conduct and circumstances. When information is discovered that could potentially disqualify the applicant, the adjudicator should consider whether the person voluntarily reported the information, was truthful and complete in responding to questions; sought assistance and followed professional guidance, where appropriate, resolved or appears likely to favorably resolve the security concern, has demonstrated positive changes in behavior and employment, and whether the person should have his or her access temporarily suspended pending final adjudication of the information.

Smith Amendment Waivers:

Security clearances are subject to periodic reinvestigation every 5 years for Top Secret clearance, every 10 years for Secret clearance, and every 15 years for Confidential clearance.  Random reinvestigations can occur at any time.  An updated security package must be submitted and another background investigation will be conducted.

Individuals with active security clearances or individuals awaiting clearance determination are required to promptly report any potentially disqualifying issues to their security officers.  Moreover, supervisors and coworkers are under a similar obligation to report any known issues that may render the individual ineligible for maintaining a security clearance. The Defense Industrial Security Clearance Office (DISCO) receives about 8,000 “incident reports” a year on cleared federal contractors who have had security-related problems. Failing to self-report a security-related event is a violation in and of itself and increases the likelihood that the clearance will be suspended or revoked.

Paragraph C9.1.4.2.2 of DoD Regulation 5200.2-R, “Department of Defense Personnel Security Program,” states that the individual is required to self-report immediately any information referred to in the Criteria for Application of Security Standards (Paragraph C2.2.1) or the Adjudicative Guidelines (Appendix 8), discussed previously. Subparagraphs C2.2.1 expressly list criminal or dishonest conduct; acts or omission or commission that indicate poor judgment, unreliability or untrustworthiness; habitual or episodic use of intoxicants to excess; and the illegal or improper use, possession, transfer, sale, or addiction to any controlled or psychoactive substance, narcotic, cannabis or other dangerous drug as necessitating self-report to the individual's security officer.

Denials of Security Clearances:

There are many reasons an applicant may be denied a security clearance or a person's existing security clearance may be suspended or revoked.  The decision to grant or deny a security clearance depends on considerations about the individual's responsibility, integrity, and overall character.  The most important factors in an investigation are the individual's honesty, candor, and thoroughness in the completion of their security clearance forms.

A criminal arrest or conviction raises questions about a person's suitability and fitness, and especially the individual's judgment and the ability or willingness to comply with rules and regulations.  Past criminal conduct becomes a potentially disqualifying condition under the Adjudicative Guidelines when it involves:

  • A single serious crime or multiple lesser offenses;
  • Discharge or dismissal from the Armed Forces under dishonorable conditions;
  • Allegation or admission of criminal conduct, regardless of whether the person was formally charged, formally prosecuted or convicted;
  • Individual is currently on parole or probation;
  • Violation of parole or probation, or failure to complete a court-mandated rehabilitation program.

The adjudicator is under an obligation to consider mitigating factors to determine whether the concern is serious enough to warrant a recommendation of disapproval or revocation of a security clearance.  The adjudicator will consider:

  • The amount of time elapsed since the criminal conduct occurred;
  • The circumstances of the behavior and whether it is likely to recur;
  • Whether the nature of the behavior casts doubt on the individual's reliability, trustworthiness, or good judgment;
  • Whether the person was pressured or coerced into the act and those pressures no longer exist in the person's life;
  • Evidence the person did not actually commit the offense;
  • Evidence of successful rehabilitation

The individual should also bring to the adjudicator's attention any showing of remorse or restitution, job training or higher education, a good employment record, community involvement, and any other positive changes in lifestyle and social responsibility. It is important that it is made clear that any past criminal conduct is not likely to recur and is not representative of the person's judgment.  If the individual was honest and forthright in acknowledging the criminal conduct and there was a significant passage of time without any other behavior showing lack of character, this incident alone should not have a significant impact on the adjudicator's determination of eligibility.

As of January 1, 2008, however, the Bond Amendment prohibits the head of a federal agency from granting or renewing a Special Access Program or Sensitive Compartmented Information security clearance for any person who “has been convicted in any court of the United States of a crime, was sentenced to imprisonment for a term exceeding 1 year, and was incarcerated as a result of that sentence for not less than 1 year; has been discharged or dismissed from the Armed Forces under dishonorable conditions; or is mentally incompetent, as determined by an adjudicating authority, based on an evaluation by a duly qualified mental health professional employed by, or acceptable to and approved by, the United States Government and in accordance with the adjudicative guidelines …” 50 U.S.C. 435b, Section 3002.

Even though the Bond Amendment purportedly only applies to Special Access Program or Sensitive Compartmented Information security clearances, because future promotions and increased job responsibilities may require higher level security clearances, a disqualification for the reasons listed above may be seen for applicants seeking lower level security clearances. 50 U.S.C. 435b, Section 3002(c)(2) creates an exception to disqualification for these reasons, though, “in a meritorious case … if there are mitigating factors.”

If you are denied a security clearance, or your continued eligibility for access to classified information is revoked, you will be notified of the reasons in a formal Statement of Reasons. You will be given the opportunity to address any derogatory information that was gathered during the investigation and either correct or clarify the situation.

Is There Hope If You Are Arrested For DUI In Georgia And Have A Security Clearance?

The short answer is yes.  There are always options and alternatives.  The key point to take from this article is that your security clearance is contingent on the result of your Georgia DUI Case or Georgia Criminal Case. If your Georgia DUI Attorney can win your case or get it reduced to a lessor charge, such as reckless driving, you will likely save your security clearance.  That is why we are available 24 Hours a Day, 7 Days a Week to start the investigation of your case.  Your career in the government or in the military or as a military contractor may depend on on it.  Call now to begin your defense.

Security Clearance References:

U.S. Department of State

Adjudicative Desk Reference

ClearanceJobs.com

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When you are arrested for DUI in Georgia, finding the right Lawyer is Job #1. At the Law Offices of Richard S. Lawson we will investigate your case and find the best possible legal defense to your DUI in Georgia. You are in good hands with Richard Lawson and his associates. We will work tirelessly to help you while compassionately holding your hand throughout the entire DUI Defense Process.

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