How far will Padilla extend - how about DWI cases?

I've either been in trial or working on a complicated federal writ for the last several weeks, and haven't had a chance to write anything about the Supreme Court's decision in United States versus Padilla. The reaction to that decision has been surprisingly mixed. I would have thought all defense lawyers viewed it as a step forward. Unfortunately, some look at it as another obligation -- something else they have to do. I can't argue with the fact that determining the immigration consequences of a conviction is a difficult process, especially for non-immigration lawyers. However, it's not about us -- it's about the clients, and it is important to them.

What interests me more about the decision in Padilla is the impact it will have on prior convictions. At first blush, it would appear to have little effect in jurisdictions such as Texas, where immigration admonishes are provided. However, looking at it more closely I believe it can be a viable means to attack some convictions. There is a distinction between those crimes which automatically lead to deportation, and those where deportation is only a possibility. Where the result is known, it is not going to be enough to tell a defendant that he might be deported. That carries the possibility that he might not be. If the conviction was for something that would automatically lead to deportation, I believe a defendant may be able to challenge that conviction if he did not know that would be the result.

Of course, being able to challenge a conviction and actually being successful are two separate things. To be successful, you will have to convince the court that you would not have pled guilty had you known the consequences. When the evidence is overwhelming, and there is no doubt you would be convicted, that is going to be a difficult burden to overcome. On the other hand, if there were legitimate issues to pursue at a trial, he might be successful. Of course the problem will be that you have been deported, and many of those who qualify for relief may live no longer be in the United States.

A more interesting aspect of Padilla is the effect it may have on other cases. The courts consistently rejected claims, because they found immigration consequences were collateral. The law has always been that a lawyer does not have to advise a defendant of all the collateral consequences flowing from a conviction. To a point that is reasonable. However some consequences are so significant that no one can seriously claim it would not be an important factor in deciding to enter a plea. Four years, courts considered sex offender registration to be a collateral consequence. Now most courts make efforts to ensure that a defendant is aware of the registration requirements before taking a plea.

What else  may be collateral? One that comes to mind immediately are the surcharges imposed for driving while intoxicated convictions. Can you seriously argue that a $1000 year assessment is not a significant consequence. Hopefully, alll lawyers advise clients of that requirement. If they don't however, that could be a legitimate basis for challenging a conviction.

In the end, what is a collateral consequence that may  invalidate a conviction is probably based on at least two things. One is that it is a consequence that is automatic -- that is it is imposed in every case. The other is that it is significant, in that it has a serious impact on a person's life. If those two factors  are present I believe you have a legitimate claim, and one that is worthy of consideration.


In the end, instead of criticizing Padilla we need to embrace it. Not only is it a guarantee that clients will be aware of all the consequences before they enter a plea, but also may provide a vehicle for challenging convictions that were not knowingly entered into. In my mind, that can be nothing but a good thing.



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