Padilla Advisory Required on DUI Cases

A Michigan DUI conviction carries with it several different kinds of penalties.  These include the court imposed sanctions including possible jail time, the driver license sanctions imposed by the Secretary of State and collateral consequences.

To the person facing a DUI conviction, the collateral consequences are typically as critically important as any other consequence that might be imposed upon conviction.  Such collateral consequences of a Michigan DUI conviction can include loss of a job or a professional license, the rescinding of a concealed carry permit, and even the loss of child custody.

A recent United States Supreme Court[i] case suggests that it may be unethical for a DUI defense attorney to fail to advise clients of these serious collateral consequences.  Such a failure to advise may also require that a DUI conviction be set aside, that is, made as it they never happened.

The name of the case is Padilla v. Kentucky[ii], and it is sure to “transform the landscape of criminal representation.”[iii] Jose Padilla, a native of Honduras, was convicted of transporting a large amount of marijuana.  As a result of his conviction he was deported.  His defense attorney convinced him to plead guilty in part by suggesting that he didn’t have to worry about deportation because he’d been in the United States for so long.  Seven justices of the Supreme Court ruled that his lawyer’s incompetent advice violated his right to counsel.

While Padilla’s effects will be felt most immediately in the tens of thousands of criminal cases involving non-citizens defendants, defense lawyers must now concern themselves more generally with the broader legal effects of a criminal conviction on their clients.  The systemic impact of this new obligation cannot be underestimated.  Padilla may turn out to be the most important right to counsel case since Gideon, and the “Padilla advisory” may become as familiar a fixture of a criminal case as the Miranda warning.[iv]

The reason the Padilla decision is so significant is that it almost certainly does not cover only the risk of deportation.  Exactly what else may be covered is not specifically stated nor is the term “collateral” specifically defined.  One possible definition of a collateral consequence is one that is “critically important” to the defendant.  Another is a consequence that is statutory and whose terms are “succinct, clear and explicit.”  A third would be those that are (like immigration) “intimately connected to the criminal process.”

While the opinion does not explicitly require notice of other “collateral” consequences of conviction, such as sex offender registration and residency requirements, loss of licenses, firearm possession bans, ineligibility for public housing or other benefits, or the right to adopt or maintain other family relationships,[v] there is plenty of reason to believe that Padilla does not apply only to deportation.

For example, there is a discussion in Padilla suggesting that deportation is unique due to its “intimate relationship” to the criminal justice system.  Furthermore that the deportation is so “enmeshed” with the criminal justice system that it is difficult to classify as either direct or collateral.

However, there is also a discussion to the contrary.  Justice Alito specifically states that he does not think deportation is all that unique.  He lists several other collateral consequences such as civil commitment, loss of public benefits, and discharge from the armed services, which might be considered just as “serious” for those affected by them.  Justice Scalia too thought there was no logical stopping point.

On balance, while there is room to argue that Padilla is a case about immigration and deportation, ultimately it is likely to have broader application.[vi] This is particularly true in the case of a DUI conviction, where there are so many collateral consequences, many of which are very serious.

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[ii] Id.

[iii] Love, Chin, Padilla v. Kentucky, The right to Counsel and the Collateral Consequences of a Conviction, Champion Magazine, pg. 23, May 2010

[iv] Id. at 19.

[v] Id. at 22

[vi] Id.

Tagged as: collateral consequences, Drunk Driving, Drunk Driving Penalties, dui

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baronedefensefirm – who has written 204 posts on .

Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.

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