Michael C. McIntosh & Tim Cisar DWI Law and Science Seminar

Transcription

1 Michael C. McIntosh & Tim Cisar DWI Law and Science Seminar H--1 1

2 The sentencing of a defendant who has been convicted of driving under the influence (DUI) of alcohol or drugs presents numerous complexities and challenges for the attorneys involved. Even a simple, first offense DUI sentence must include a variety of mandatory sanctions that are found throughout the motor vehicle and criminal codes. These will include a loss of driving privileges, alcohol education classes, fines, costs, assessments and even the possibility of a jail sentence. As seen in great detail from the following sections, these sanctions will increase in severity for subsequent DUI offenses. Over and above these direct consequences of a conviction, there are numerous collateral consequences that every convicted DUI defendant will have to face. As a general rule, the collateral consequences will affect the defendant's life for years into the future. Indeed, some of the consequences hinder the defendant for the rest of his or her life. Thus, given the impact of both the direct and collateral consequences of a DUI conviction and resulting sentence, it is vital that defendants be thoroughly informed and cautioned as to what awaits them in the future. H--2 2

3 In addition to the incarceration, license suspension, probation, fines, fees, and court costs, collateral consequences exist for those convicted of DUI which equal or exceed the penalties imposed by the court. Persons who have been convicted of even a first offense DUI suffer from the following: Significant automobile insurance premium increases Inability to rent a vehicle Loss of present employment Exclusion from future employment Loss of professional licensure Increased cost of life insurance, if not the inability to purchase life insurance at all. 1) Immigration and Foreign Travel 2) Professional Licensing 3) Federal Motor Safety Carrier Act 4) Suspended Imposition of Sentence (SIS) H--3 3

4 Given the complexities of the immigration laws, there remains a possibility that subsequent or aggravated drinking and driving convictions could have immigration consequences. There are three primary types of offenses for which conviction could possibly lead to deportation or removal from the United States: (1) Aggravated Felonies; (2) Controlled Substance Offenses; and (3) Crimes of Moral Turpitude. A first time DUI (Class B misdemeanor) by itself does not supply independent ground for a deportation action. A single, simple drinking and driving conviction does not constitute a deportable offense. A single, simple alcohol-related driving conviction is neither a crime of violence, see Leocal v. Ashcroft, 125 S. Ct. 377 (2004), nor a crime involving moral turpitude, see, e.g., Matter of Lopez-Mesa 22 I. & N. Dec (BIA 1999) (expressing opinion that a simple DUI offense will almost never rise to the level of moral turpitude). H--4 4

5 Under the U.S. Code, a conviction for either a crime involving moral turpitude or a crime of violence, as defined under federal law, can make a non-resident deportable Aggravated felonies include crimes of violence, as well as certain other specifically defined offenses. 8 U.S.C.A. 1101(a)(43). The term crime of violence means (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C.A. 16. This does not mean that DUI (Class B) has no effect on immigration status; it does. A DUI committed by a noncitizen combined with another offense could cause problems. If the prior was one of moral turpitude or the sentences of the two add up to an aggregate of five years (felony DUI Class D, four-year sentence, and a leaving-the-scene misdemeanor, Class A, one-year sentence). 8 U.S.C.A (a)(2)(b). A felony Class D DUI conviction does not reach the five-year sentence; however, both a Class C and a Class B felony DUI conviction could cause serious consequences. Even if the client is not deported, he or she may not be let back into the country if he or she travels abroad to visit relatives. 8 U.S.C.A (a)(2)(b). H--5 5

6 U.S. citizens with DUI convictions may face difficulty being admitted into other countries. Canada, for example, classifies any alcohol-related driving conviction as a felony, and, therefore, U.S. citizens seeking admission into Canada can be denied entry. This applies to any personal or business travel. The only way to be admitted is to get special authorization from the Canadian government in the form of a temporary resident visa (TRV), formerly known as a Minister's Permit. It can take several months for the TRV to be processed. H--6 6

7 In the State of Missouri, as in most states, a Driving While Intoxicated charge is really two separate cases. A DWI charge involves both a violation of the misdemeanor statute of Driving While Intoxicated, as well as an administrative case referred to as Statutory Summary Suspension involving your right to drive on the roadways of Missouri as determined by the Missouri Department of Revenue. Either case may suspended your driving privileges, but each comes with its own set of penalties, consequences, and evidentiary issues. All professionals, be they doctors, lawyers, pilots, accountants, commercial drivers, teachers, or cosmetologists, must be concerned about the status of their ability to continue their profession upon a criminal conviction. Many professions have their own organization's rules, bylaws, and regulations. H--7 7

8 For a driver with a CDL, even if not using the CDL at the time, DUI can still affect the CDL and have drastic consequences. In Missouri, for a first DUI conviction, the commercial driver will be disqualified from driving a commercial vehicle for not less than one year. In Missouri, for a second offense, the driver can lose their CDL for life, or a minimum of 10 years. There are reporting requirements for anyone holding an FAA pilot's license. Like CDL license holders, pilots who get a DUI charge have an entirely different set of rules to consider. FAA-licensed pilots can be penalized with a fine for refusal of a chemical test. This is also an area where the violator will face both federal and state entanglements. The State of Missouri has criminal consequences for any pilot or flight crew member found to be impaired, at or above 0.04 BAC (same as stop in commercial vehicle for CDL holder) or to have consumed within eight hours. V.A.M.S A pilot or flight crew member can be guilty of an infraction for refusing a chemical test (similar to federal DUI). Therefore, the pilot-related Missouri and federal DUI law is more strict than the DWI/BAC laws of and/or , respectively. If the pilot or flight crew member refuses the test, he or she can face a fine up to $1,000 under Missouri law. V.A.M.S along with penalties by the FAA. H--8 8

9 A criminal act by a lawyer that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer is considered professional misconduct under Rule 4 8.4(b). V.A.M.R. 4, Rules of Prof. Conduct, Rule 4 8.4(b). See also In re Stewart, 342 S.W.3d 307, 308 (Mo. banc 2011). Each disciplinary case ultimately stands on its own facts, but the ABA Standards for Imposing Lawyer Sanctions provide guidance for appropriate discipline. In re Madison, 282 S.W.3d 350, 360 (Mo. banc 2009); In re Downs, 363 S.W.2d 679, 691 (Mo. banc 1963). Following the model laid out in ABA Standard 3.0, four factors are considered in determining the appropriate discipline: (1) the duty violated; (2) the lawyer's mental state; (3) the potential or actual injury caused by the lawyer's misconduct; and (4) aggravating and mitigating circumstances. Missouri's statutory scheme for the discipline of physicians is complex. The Missouri State Board of Registration for the Healing Arts has wide-ranging discretion that, except for physician competency hearings, is subject to Administrative Hearing Commission (AHC) review to hear evidence and decide whether the facts support the board's charges. If the AHC finds that the charges are supported, the board imposes discipline. AHC and board decisions, in turn, are subject to judicial review. Under , RSMo Supp. 2010, the board is responsible for registering, licensing and supervising all physicians... Some disciplines are mandatory, such as automatic revocation for certain felony convictions. See , RSMo Supp Cantrell v. State Bd. of Registration for the Healing Arts, 26 S.W.3d 824, 828 (Mo. App. W.D. 2000), holds that under the license of a physician who pleads guilty to the felony of fraudulently attempting to obtain a controlled substance is automatically revoked and the board lacks authority to stay the revocation. H--9 9

10 The Missouri Revised Statutes, explain that 1. A license issued under this chapter by the Missouri State Board of Registration for the Healing Arts shall be automatically revoked at such time as the final trial proceedings are concluded whereby a licensee has been adjudicated and found guilty, or has entered a plea of guilty or nolo contendere, in a felony criminal prosecution under the laws of the state of Missouri, the laws of any other state, or the laws of the United States of America for any offense reasonably related to the qualifications, functions or duties of their profession, or for any felony offense involving fraud, dishonesty or an act of violence, or for any felony offense involving moral turpitude, whether or not sentence is imposed, or, upon the final and unconditional revocation of the license to practice their profession in another state or territory upon grounds for which revocation is authorized in this state following a review of the record of the proceedings and upon a formal motion of the state board of registration for the healing arts. The license of any such licensee shall be automatically reinstated if the conviction or the revocation is ultimately set aside upon final appeal in any court of competent jurisdiction. 2. Anyone who has been denied a license, permit or certificate to practice in another state shall automatically be denied a license to practice in this state. However, the board of healing arts may set up other qualifications by which such person may ultimately be qualified and licensed to practice in Missouri. Nurses and other health care providers are actually required to disclose all DUI events. The Missouri State Board of Nursing requires that all convictions, guilty pleas and no contest pleas must be reported, except for minor traffic violations not related to the use of drugs or alcohol. This includes misdemeanors, felonies, driving while intoxicated (DWI) and driving under the influence (DUI). Crimes must be reported even if they result in a suspended imposition of sentence. All prior or current disciplinary action against another professional license must be reported, whether it occurred in Missouri or in another state or territory. The Board must review, on a case by case basis, all criminal records and su pporting documentation to determine if an application will be approved or denied. Section , RSMo. Offenses must be reported to the Board even if the individual received a suspended imposition of sentence and the record is now considered closed. H

11 In addition to criminal and civil penalties in the Missouri court system, an armed forces member may also face disciplinary sanctions, such as Article 15 (Army and Air Force), captain's mast (Navy and Coast Guard) or office hours (Marines). Even if cleared of the DWI charge in Missouri circuit court, the individual may still face the prospect of non-judicial punishment (NJP) from their Commanding Officer or Officer in Charge. Punitive actions under the Uniformed Code of Military Justice (UCMJ) are available to the military if you are not being prosecuted by civilian authorities, which is typically the case if you were stopped for a DUI while on the installation. In a military DUI case, the sentencing can be quite different. For example, military DUI does not have a maximum legal sentence, so the court will be able to decide the sentence. A military DUI conviction can result in dishonorable discharge, a rank reduction, a pay deduction, loss of security clearance, fines, and imprisonment. The DUI attorney should know the client and what collateral damage could be caused by a DUI plea of guilty, finding of guilt, and/or conviction. The first opportunity is during the initial meeting, either by questionnaire or oral inquiry, to get information about the client's licenses (professional, CDL, FAA, etc.), about employment requirements for driving, immigration status, and plans for the future. H

12 DUI attorneys will not have all of the answers; however, they can refer their clients to a specialist in that other field of law. As always, it would be a good idea to put a letter together and send it to the client early in the representation regarding possible consequences and urging them to seek experts in the area(s) needed. DUI attorneys can also put into the representation agreement that the representation is limited to DUI and does not cover immigration, professional licenses, and pilots holding FAA licenses. In giving proper warning and limitation of representation, they protect themselves from bar complaints and possible law suits. H

13 Federal Motor Carrier Safety Administration 1200 New Jersey Avenue SE Washington, DC (800) The Federal Motor Carrier Safety Regulations (FMCSR) maintain specific drug and alcohol testing requirements. CDLs and their employees must follow alcohol and drug testing rules. 49 CFR 382. The FMCSA requires drivers who operate CMVs that require a commercial driver's license (CDL) to be subject to random drug and alcohol testing. H

14 Published 2/20/2014 in the Federal Register: Requires reporting of verified drug or alcohol tests, refusals Employers report traffic citations for alcohol or drugs Dismissals are not insulated from penalties of suspension by the FMCSA Employers with Knowledge Police DoT H

15 DOT-wide regulation that states how to conduct testing and how to return employees to safety-sensitive duties after they violate a DOT drug and alcohol regulation. Sets out the opportunity for a hearing on a decision of FMCSA to suspend (30 days up to one year) H

16 Driving a commercial motor vehicle while under the influence of alcohol means committing any one or more of the following acts in a CMV (a) Driving a CMV while the person's alcohol concentration is 0.04 or more; (b) Driving under the influence of alcohol, as prescribed by State law; or (c) Refusal to undergo such testing as is required by any State or jurisdiction in the enforcement of (b) or 392.5(a)(2) of this subchapter. [D]river shall notify employ[er]. Offenses are as above for alcohol, driving under the influence of drugs, transporting, possessing or using drugs while on duty, leaving the scene of an accident while operating a CMV, a felony involving use of CMV. H