Leocal v. Ashcroft

SCOTUSblog reports that the US Supreme Court has determined that a DUI stemming from a personal injury accident is not a "violent crime" that would allow deportation.



The decision in Leocal v. Ashcroft is posted in PDF form here.



The facts:

"Petitioner immigrated to the United States in 1980 and became a lawful permanent resident in 1987. In January 2000, he was charged with two counts of DUI causing serious bodily injury under Fla.Stat.§316.193(3)(c)(2), after he caused an accident resulting in injury to two people. He pleaded guilty to both counts and was sentenced to two and a half years in prison.



In November 2000, while he was serving his sentence, the Immigration and Naturalization Service (INS)initiated removal proceedings against him pursuant to §237(a)of the INA.Under that provision,“[a ]ny alien who is convicted of an aggravated felony . . . is deportable” and may be removed upon an order of the Attorney General. 66 Stat.201, 8 U.S.C. §1227(a)(2)(A)(iii)."

The law:

According to Section 101(a)(43), an “aggravated felony” includes:

“a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year . . . ”

Title 18 U.S.C.§16 defines the term “crime of violence” as:

“(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.”

Florida Statute 316.193

(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person's normal faculties are impaired;



(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or



(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

. . .



(3) Any person:

(a) Who is in violation of subsection (1);



(b) Who operates a vehicle; and



(c) Who, by reason of such operation, causes or contributes to causing:

2. Serious bodily injury to another, as defined in s. 316.1933, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The Rationale:

The Court first addressed 16(a):

"The plain text of §16(a)states that an offense, to qualify as a crime of violence,must have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” We do not deal here with an attempted or threatened use of force. Petitioner contends that his conviction did not require the “use” of force against another person because the most common employment of the word “use” connotes the intentional availment of force, which is not required under the Florida DUI statute. The Government counters that the “use” of force does not incorporate any mens rea component, and that petitioner ’s DUI conviction necessarily includes the use of force.



"[U}se” requires active employment . . . While one may, in theory, actively employ something in an accidental manner,it is much less natural to say that a person actively employs physical force against another person by accident. Thus, a person would “use ...physical force against” another when pushing him; however, we would not ordinarily say a person “use[s] .... physical force against” another by stumbling and falling into him. When interpreting a statute, we must give words their “ordinary or natural” meaning.

(NOTE to non-lawyers: mens rea is a legal term drawn from Latin, that is translatable roughly as "guilty mind." It means the requisite criminal intent necessary to have committed a crime - the mental state of the accused - and requires proof of a positive state of mind such as intent, recklessness, or willfulness.)



The Court noted that Section 16(b) was broader, defining a crime of violence as including “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.” But the court drew a distinction between those offenses that naturally involve a person acting in disregard of the risk that physical force, like burglary, and simple negligent misconduct, such as the negligent operation of a vehicle:

"The classic example is burglary. A burglary would be covered under §16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.



Thus, while §16(b)is broader than §16(a)in the sense that physical force need not actually be applied, it contains the same formulation found to be determinative in §16(a): the use of physical force against the person or property of another. Accordingly, we must give the language in §16(b)an identical construction, requiring a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense."

Additionally, the Court pointed out that Section 212(a)(2)(E)of the INA renders inadmissible any alien who has previously exercised diplomatic immunity from criminal jurisdiction in the United States after committing a “serious criminal offense," defined elsewhere in the statute to mean:

“(1)any felony;

“(2)any crime of violence, as defined in section 16 of title 18; or

“(3)any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal in jury to another.”

The court pointed out that if it were to find that DUI causing a personal injury was a "crime of violence" under section 16, there would be no point in listing it under §101(h)(3), which would then become practically devoid of significance. Renquist points out that in statutory construction, the Court is supposed to "give effect to every word of a statute wherever possible," and that principle bolsters the conclusion that DUI offenses, even ones causing personal injury, are not a "crime of violence" under section 16.



I agree with the point about the statutory construction, it would be stupid for congress to have included DUI with injury in 101(3) if it were covered in the previous paragraph. 16(b) is more difficult, but the distinction is there.



16b only states that to be a crime of violence, the offense must: 1) be a felony, 2) by it's nature, involves a "substantial risk" that physical force might be used. If the word "use" one that triggers the higher mens rea - recklessness rather than negligence, then 16b doesn't require reckless/intentional use of force have occurred, only that the crime by it's nature involve a substantial risk that it occur.



The Court holds out Burglary as an example of a 16(b) crime because the nature of the offense itself it encompasses the risk physical force might be used that would cause injury. I can agree that driving while intoxicated doesn't naturally encompass that risk, but what about the crime of DUI causing physical injury?



I can see where one could argue it like this: under what hypothetical would it be possible to commit the crime of DUI causing injury without physical force capable of causing an injury? If you look at it that way, it would seem that the "substantial risk that physical force against the person or property of another may be used in the course of committing the offense" is an inherent part of the crime as so defined, because the crime cannot be committed without that physical force.



But the key is not "physical force" but "the use of physical force" and so the Court's reasoning refutes this argument. A rewording: Does DUI causing injury, by its nature, generally involve a substantial risk that a person might (knowingly or recklessly use) physical force against the person or property of another in the course of committing it? If you read the mens rea into the word use, I think it's not a natural part of the DUI causing injury crime. While there are some cases of people intentionally causing bodily injury or property damage while drunk driving, I believe that it is far from the norm. I think Ashcroft was doing some overreaching when he tried to state that no mens rea whatsoever was required to be shown for deportation on this charge.