DUI: A “Crime of Violence”? The Supreme Court Gets it Right

Posted by Lawrence Taylor on November 14th, 2004

It is difficult for members of the public to recognize and appreciate the degree to which a double standard exists in the drunk driving field. The laws are increasingly unrealistic, procedures unfair, evidence unreliable and constitutional protections largely ignored.

An example of this was recently demonstrated in a United States Supreme Court decision (Leocal v. Ashcroft, No. 03-583; November 9, 2004). The Court was faced with the appeal of Josue Leocal, a lawful permanent resident of 20 years, who pleaded guilty to DUI with injury. As a result, the Immigration and Naturalization Service (INS) commenced proceedings to have him deported as an alien convicted of an "aggravated felony".

The INS regulations defined an aggravated felony as "a crime of violence", which in turn is defined as "an offense that has as an element the use…of physical force against the person or property of another." An Immigration Judge ordered the deportation, and the Board of Immigration Appeals upheld the order. Leocal went to the U.S. Court of Appeals, which promptly denied his petition for review.

Fortunately, the Supreme Court reversed the deportation order. In a rare unanimous decision, the Court stated the obvious: DUI is simply not a crime of violence, even if someone is injured in its commission. A deportable "crime of violence", the Court said, required "a higher mens rea [mental state] than the merely accidental or negligent conduct involved in a DUI offense." In other words, the requirement of "the use of physical force against" a person necessarily involves the intent to use that force. Put yet another way: How can you be accidentally violent?

The point here, of course, is that everyone right up to the Supreme Court of the United States was perfectly willing to twist the clear wording of the law when the politically unpopular crime of drunk driving was involved. At every level, the nations’s agencies and courts pretended that a crime clearly involving no intent was, in fact, a crime involving the intentional commission of a violent act against someone. As we see so often in DUI cases, the Red Queen was right: "A word means exactly what I say it means".

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