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Friday, July 22, 2016

When is a DUI an aggravated felony? When it involves a child.

I subscribe to an immigration lawyer group, and a great question was asked about DUI's. I thought I would share this. The question dealt with whether a DUI was a CIMT. Oh, and the person was also convicted of child endangerment. My answer follows:

I’m not a CA attorney, of course, but in terms of CIMT issues, the hallmark is “willful” conduct. This is not always determinative, but it is a good place to start your inquiry. Looks like “willful” is an element of CA penal code 273a(a) which reads:
Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

The term has meaning beyond mere intent. Willful means knowing of the risk or impact before-hand, and choosing to pursue it regardless ( “purposefully doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury” Tighe v. Diamond, 80 N.E.2d 122 (1948)). Willfulness in the criminal context is almost always considered a moral breach, making a crime with this element a CIMT. I also believe this is a felony?

If the DUI included placing the child in danger, that is definitely a CIMT.

The question of whether child endangerment is a CIMT when in conjunction with a DUI is answered in Hernandez-Perez v. Holder, 569 F.3d 345 (8th Cir. 2009). “While Hernandez–Perez is correct that a “simple operating a motor vehicle while intoxicated” conviction would not qualify as a crime involving moral turpitude, the aggravating factor here is present in the child endangerment statute's requirement of a conscious disregard of a substantial risk to a child in his care.” Id at 348.

Again, you see the willful component. That’s the kicker.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864
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