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2nd Circuit Declares DWI Not a Crime of Violence

February 13, 2008

As discussed in 6 NYDWI Bulletin 23, one of the most damning consequences that could befall an alien convicted of an alcohol related operating offense is to be deported. Until just recently, deportation loomed large for aliens so convicted. At the crux of the issue is 8 U.S.C. 1228. This statute provides for the expedited removal of aliens convicted of committing aggravated felonies. As set forth in subdivision (a) (1):

The Attorney General shall provide for the availability of special removal proceedings at certain Federal, State, and local correctional facilities for aliens convicted of any criminal offense covered in section 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 1227(a)(2)(A)(i) of this title . . .


8 U.S.C. 1227(a)(2)(A)(iii), in pertinent part, provides that [a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.

Of importance is the broad definition of the term alien. By statute, an alien is defined as an individual not lawfully admitted for permanent residence or had permanent resident status on a conditional basis (as described in section 8 U.S.C. 1186[a]) at the time when the proceedings for deportation are commenced. Also by statute (8 U.S.C. 1228(c) [note that two subsections entitled (c) were enacted]) there is created a conclusive presumption of deportability. As described by the statute, an alien convicted of an aggravated felony shall be conclusively presumed to be deportable from the United States.

As used by this statute, 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 at [is] least one year. 8 U.S.C. 1101(a)(43)[f]. We all know that the term of imprisonment for felony DWI in either of its two forms is in excess of 1 year. The real issue, however, is whether a felony DWI is a crime of violence. Under the applicable statute, a crime of violence is one which involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense (18 U.S.C. ' 16[b]). In making this determination, the Court must look to the generic elements of the crime rather than the specific facts of the case to determine whether a crime involves a substantial risk that physical force may be used (see, Alcantar, 20 I. & N. Dec. at 808 [BIA 1994]).

As we earlier reported, in Camacho-Marroquin v. Immigration and Naturalization Service, 188 F.3d 649 (5th Cir. Sept. 29, 1999), a Mexican citizen entered the United States without inspection in 1984. On March 26, 1998, he was convicted of felony Driving While Intoxicated as a third time offender. He received a five year suspended sentence and five years probation. On March 27, 1998, the Immigration and Naturalization Service (INS) served Camacho with a Notice of Intent to Issue Final Administrative Removal Order (Notice) pursuant to INA ' 238(b), 8 U.S.C. ' 1228(b). As discussed in the opinion, this notice informed Camacho that he had the right to contest his deportability and to seek judicial review of the final administrative order. Camacho admitted the allegations in the Notice, admitted he was deportable, and waived his right to rebut and contest the charges. A threshold issue was whether Camacho failed to exhaust his administrative remedies.

Reducing this consideration to its integral resolution, the Fifth Circuit, in a per curiam decision found that INS regulations provided Camacho no avenue for challenging the legal conclusion that a Texas felony DWI is an aggravated felony. Therefore, since no means of challenge existed, the Court held that Camacho did not fail to exhaust his administrative remedies so as to deprive the court of jurisdiction.

The real meat of the issue concerned the crime of violence finding which was required by the statute. At the onset, the offense of which Camacho was convicted, DWI as a third time offender is, under Texas law, a felony (see, Tex. Penal Code Ann. ' 49.09 [Supp.1999]). But, is DWI a crime of violence so as to mandate deportation? Addressing this critical issue, Camacho argued that it was not. The Texas Penal Code defines DWI as operating a vehicle in a public place while intoxicated (see, Tex. Penal Code Ann. ' 49.04 [Supp.1999]. In so doing, Camacho contended that since Texas case law, defines operating as affecting the functioning of a vehicle in a manner that would enable the vehicle's use (see, Barton v. State, 882 S.W.2d 456 [Tex.Civ.App., Dallas 1994]) and since a public place includes areas as innocuous as the yard of a private residence (see, Banda v. State, 890 S.W.2d 42, 52 (Tex.Crim.App.1994) it did not necessarily follow that Driving While Intoxicated under Texas law involves a substantial risk that physical force may be used.

Rejecting this rather myopic view of the offense, the Court turned to Federal precedent involving alcohol related operating offenses:

Camacho's assertion is not persuasive given the federal court's recognition of the substantial risk that force may be used by drunk drivers. See e.g., Michigan State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) (noting that drunk drivers annually cause over 25,000 deaths, approximately one million personal injuries and more than $5 billion in property damage); United States v. Rutherford, 54 F.3d 370, 376 (7th Cir.1995) (<[d]runk driving, by its nature, presents a serious risk of physical injury.') Although Camacho points out that ' 49.04 defines the offense as <operating' rather than driving, operating includes driving and other conduct rapidly convertible to driving. For these reasons, we hold that Texas felony DWI is a crime of violence, involving a substantial risk that harm may be used. Because Camacho, an alien, committed a crime of violence and therefore an aggravated felony and deportable offense, we lack jurisdiction under INA ' 242(a)(2)(C) to review his removal order.


Under Comacho, we had little doubt as to how the issue would be resolved in New York. New York Vehicle and Traffic Law ' 1192(3) merely sets forth that it is a misdemeanor to operate a motor vehicle while in an intoxicated condition. Even so, the standard to be applied is that defined by People v. Cruz, (1979) 48 NY2d 419, 423 NYS2d 625, 399 NE2d 513, app dismd 446 US 901, 64 L Ed 2d 254, 100 S Ct 1825. To be intoxicated in New York, a motorist must voluntarily consume[] alcohol to the extent that he is incapable of employing the physical and mental abilities which he is expected to possess in order to operate a vehicle as a reasonable and prudent driver. Couple this with the fact that the term dangerous instrument has been held to include automobiles (see, People v. Acton (1989, 3d Dept) 149 App Div 2d 839, 540 NYS2d 544; see also, People v. Le Beau (1985) 128 Misc 2d 226, 489 NYS2d 677; and see, People v. Diaz (1987, 4th Dept) 129 App Div 2d 968, 514 NYS2d 150), we were hard pressed to say that felony Driving While Intoxicated would not fall within the purview of a crime of violence at least to the extent found in Camacho.

Ditto for Vehicle and Traffic Law ' 1192(2) Driving While Intoxicated, per se. Although the statute requires no proof of the physiological condition of the motorist, it has nonetheless been held that charges under Vehicle and Traffic Law ' 1192(2) and Vehicle and Traffic Law ' 1192(3) constitute but a single generic offense (People v. Farmer, (1975) 36 NY2d 386, 369 NYS2d 44, 330 NE2d 22). Thus, under this standard, we could perceive no difference between the treatment to be afforded a felony conviction under either of these two subsections.

Fortunately, Comacho is no longer good law in the 2nd Circuit. In Dalton v. Ashcroft, 2001 WL 822454, a Canadian citizen was convicted of felony DWI. For those that think we have been alarmist on this issue, just listen to these facts. Anthony Thomas Dalton was (and is) a native and citizen of Canada. However, he has been living continuously in the United States as a lawful permanent resident since 1958, before he was one year old. Moreover, his parents and siblings reside in the United States as well. Dalton had been convicted several times under New York Vehicle and Traffic Law ' 1192(3) for Driving While Intoxicated. On January 15, 1998 he pleaded guilty to his most recent offense as a class D felony (see, Vehicle and Traffic Law ' 1192.1(c)[ii]). Thereafter, he was sentenced to a 1 2 to 4 2 years term of imprisonment.

In April 1999, while Dalton was serving his prison sentence, the Immigration and Naturalization Service ("INS") initiated removal proceedings against Dalton. They charged that he was removable since he was an alien convicted of an aggravated felony as a result of his conviction for felony Driving While Intoxicated. Afforded two telephonic removal hearings, Dalton admitted that he was convicted under ' 1192(3), but denied that the conviction constituted an "aggravated felony" as defined under 8 U.S.C. ' 1101(a)(43)(F) or a "crime of violence" as defined under 18 U.S.C. ' 16(b).

In December 1999, the Immigration Judge rejected Dalton's argument and ordered him removed to Canada without the opportunity to request relief. Ordinarily, certain lawful permanent residents subject to deportation may seek discretionary cancellation of their order of removal. However, under 8 U.S.C. ' 1229b(a)(3)(2000), permanent residents convicted of any aggravated felony are expressly excepted from this group. Thereafter, Dalton appealed the decision of the Immigration Judge to the Board of Immigration Appeals ("BIA"). Basing its reasoning on BIA precedent regarding Texas and Arizona DWI statutes as well as Comacho[i] concluded on May 17, 2000, that a violation of Vehicle and Traffic Law ' 1192(3) constitutes a "crime of violence" affirmed the Immigration Judge's removal order.

On appeal, the Second Circuit commenced by recognizing that while it had no jurisdiction to review the immigration status of an alien convicted of an aggravated felony (see, 8 U.S.C. ' 1252(a)(2)[C]), it may nonetheless determine if the alien was in fact convicted of an offense that would constitute an aggravated felony under 8 U.S.C. ' 1101(a)(43)(F), as defined by 18 U.S.C. ' 16 (see, Bell v. Reno, 218 F.3d 86, 89 [2d Cir.2000]). Accordingly, because "aggravated felony" is defined in ' 1101(a)(43)(F) by reference to a "crime of violence" in 18 U.S.C. ' 16, the court reviewed de novo the question whether Vehicle and Traffic Law ' 1192(3) constituted a "crime of violence" so as to render it a deportable "aggravated felony."

Turning to the substantive issue, the court initiated its analysis by applying what it referred to as the categorical approach. This methodology mandates that the court examine the crime to be considered without examination of the particular facts and circumstances of the offense charged. As defined by the court, "the singular circumstances of an individual petitioner's crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant [.] Michel v. INS, 206 F.3d at 270 (Calabresi, J., dissenting); see also Tapia Garcia v. INS, 237 F.3d 1216, 1221‑22 (10th Cir.2001) (citations omitted). This of course is a very sharp two-edged sword. On the one hand, the right interpretation could benefit the individual who had been convicted of Vehicle and Traffic Law ' 1192(3) following a violent accident. On the other hand, examination of the offense without reference to the facts could result in all aliens being treated as though the worst had occurred. In applying what it referred to as the categorical approach, the court determined that the offense itself must be one of moral turpitude. Such an interpretation, it felt, was consistent with hoary precedent of the circuit on this issue (see, United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 [2d Cir.1939]; see also United States ex rel. Zaffarano v. Corsi, 63 F.2d 757, 758 [2d Cir.1933]; United States ex rel. Robinson v. Day, 51 F.2d 1022, 1022‑23 [2d Cir.1931]). Of true interest to us is that in applying this standard, the Second Circuit turned to the recent Attempted DWI holding of People v. Prescott, 95 N.Y.2d 655, 722 N.Y.S.2d 778, 745 N.E.2d 1000 (N.Y.2001). The court quoted and found dispositive the following portion of Prescott:

[T]he breadth of conduct prohibited by Vehicle and Traffic Law ' 1192, as interpreted by our courts, is sweeping. Our courts have long recognized that the definition of operation is broader than that of driving and that " '[a] person operates a motor vehicle within the meaning of [the statute] when, in the vehicle, he intentionally does any act or makes use of any mechanical or electrical agency which alone or in sequence will set in motion the motive power of the vehicle[.]' " Id. (quoting People v. Alamo, 34 N.Y.2d 453, 459, 358 N.Y.S.2d 375, 315 N.E.2d 446 (quoting Matter of Prudhomme v. Hults, 27 A.D.2d 234, 237, 278 N.Y.S.2d 67)).



Indeed, it was the broad interpretation of operation that proved to be of saving grace for Mr. Dalton. Leafing broadly through the outer limits of what has been found to be operation in New York (People v. Marriot, 37 A.D.2d 868, 325 N.Y.S.2d 177, 178 (3d Dep't 1971) [Defendant can be found guilty of driving while intoxicated even if he or she is asleep at the wheel of a car whose engine is not running and evidence is adduced at trial that the vehicle never moved.]; People v. Prescott, 722 N.Y.S.2d at 782, 745 N.E.2d 1000 [A person can also be found guilty of operating a vehicle while intoxicated without knowing how to operate the vehicle in question]; People v. David "W", 83 A.D.2d 690, 442 N.Y.S.2d 278, 279 (3d Dep't 1981) [holding that testimony regarding the in-operability of a vehicle behind the wheel of which defendant was found drunk and slumped over was inadmissible because such testimony is irrelevant to the question of guilt under statute]), the court observed:

The aforementioned cases make clear that a person can be convicted under NYVTL ' 1192(3) even when there is no risk that force may be used or that injury may result. We are at a loss to see how this minimum threshold, even if met on three separate occasions, satisfies the statutory definitions of an "aggravated felony" or a "crime of violence."


While the Government argued that Prescott stands for the proposition that the since the motorist intends to operate a motor vehicle his or her intention carries with it a "substantial risk that physical force . . . may be used," this was a proposition that was throughly and eloquently dispensed by the second circuit:

An intention to drive is not the same as driving. Just as many good intentions are crushed by reality, so too can reality felicitously crush bad intentions. Subsection 16(b) defines a "crime of violence" in terms of real, substantial risks and cannot support deportation based upon hypothetical harms.


In the alternative, the Government attempted to argue that their argument that Vehicle and Traffic Law ' 1192(3) is comparable in scope to ' 16(b). This was similarly rejected, again with the exercise of clear and unfailing logic:

We believe the language of ' 16(b) fails to capture the nature of the risk inherent in drunk driving. This risk is, notoriously, the risk of an ensuing accident; it is not the risk that the driver will "use physical force" in the course of driving the vehicle. Indeed, in the context of driving a vehicle, it is unclear what constitutes the "use of physical force." The physical force used cannot reasonably be interpreted as a foot on the accelerator or a hand on the steering wheel. Otherwise, all driving would, by definition, involve the use of force, and it is hard to believe that Congress intended for all felonies that involve driving to be crimes of violence.


Naturally there are those that will argue that the risk of injury or death is so inherent in drunk driving that it will a priori supply the necessary physical force to render the act a crime of violence. Variously argued by the Government, that too was rejected by the Second Circuit:

The government likens, at different times, the "use of physical force" with speeding, crashing, harming others and/or possessing an out‑of‑control car. These interpretations tend to equate "physical force" with an accident. Under this definition, a drunk driver would not be "using" physical force unless he or she had an accident. This interpretation distorts language and our common sense understandings insofar as an accident, by definition, is something that is neither planned nor foreseen‑‑except perhaps in hindsight. Although an accident may properly be said to involve force, one cannot be said to use force in an accident as one might use force to pry open a heavy, jammed door.


* * *

Indeed, the government struggles to avoid awkward language when describing an accident as the "use of physical force." The government writes that "it is undeniable that driving while intoxicated greatly increases the likelihood that one will inflict harm on others via the use of force," and that "the crashing of the drunk driver's automobile ... constitutes the force that is likely to be used." The government conceals with its use of the passive voice what ' 16(b) reveals in its clear and ordinary language: a crime of violence must involve the application of force.


Addressing the risk of injury head on, the court's determination was particularly telling:

The government argues that the difference, if any, between a "risk of injury" and a risk of the "use of physical force" is negligible. We disagree. There are many crimes that involve a substantial risk of injury but do not involve the use of force. Crimes of gross negligence or reckless endangerment, such as leaving an infant alone near a pool, involve a risk of injury without the use of force. Statutes criminalizing the use, possession and/or distribution of dangerous drugs and other controlled substances also underscore the fact that some criminal conduct may involve a substantial risk of injury or harm without at the same time involving the use of physical force. Other courts have also recognized the logical fallacy inherent in reasoning that simply because all conduct involving a risk of the use of physical force also involves a risk of injury then the converse must also be true. See Chapa‑Garza, 243 F.3d at 926; United States v. Parson, 955 F.2d 858, 866 (3d Cir.1992).


It is important to note that the decision was not unanimous. Chief Judge Walker dissented upon the basis that Vehicle and Traffic Law '' 1192.3 and 1193.1(c), create a "crime[s] of violence" as that term is defined in 18 U.S.C. ' 16(b). Turning to the examples offered up by the majority of instances in which the defendant incurs legal liability without creating a risk of injury, he noted that one may always conjure up examples of how a criminal statute can be applied to cases where the defendant's conduct does not create a risk that force will be used. For instance, a defendant might be convicted of Burglary notwithstanding that he entered through a wide‑open door when no one was at home.

Further, Judge Walker outright disagreed with the proposition advanced by the majority that Driving While Intoxicated does not involve the use of physical force.

Driving inevitably involves intentional use of force: the driver necessarily intends to use mechanized force to propel the vehicle to its destination. In an accident, that force does not stop being "used"; but for the driver's use of force to propel the vehicle, the collision with another vehicle or a pedestrian would not have occurred. Accordingly, all driving involves some risk that "physical force may be used against the person or property of another." Driving while intoxicated, however, makes that risk "substantial" and therefore triggers ' 16(b)'s definition of a crime of violence.


Most notable, however in Walker's dissent is the fact that the offense is a felony. Walker notes that the fact that the offense has occurred on at least two prior occasions increases the attendant risk:

Although the prior convictions do not increase the chance that the defendant will cause injury in driving drunk for the third time (they are independent events), the risk that injury will occur on one of three occasions is greater than on any one occasion considered alone. Consequently, the more drunk driving incidents incorporated into a single offense, the greater the risk of harm associated with that offense. Because New York's DWI statute requires multiple prior DWI convictions, the offense "by its nature" involves a substantial risk that harmful force will be used.



We are particularly pleased with the Dalton decision. We have always been of the rather strong opinion that it is deeply erroneous to conclude that Driving While Intoxicated is, without more, a crime of violence (see, Fiandach, Handling Drunk Driving Cases 2d, ' 11:3, p. 11-8, West Group, 1995). Given the facts of the petitioner's life-long contact with this country, deportation not only fails to fit the crime, but in light of the rather significant jail term the petitioner received, constitutes cruel and unusual punishment.

Our joy notwithstanding, it is important to note that the Second Circuit left the door open for a contrary resolution, oddly turning to the subsection under which the defendant is charged. Witness the following footnote:

By using the phrases "operating a vehicle while intoxicated," "driving while intoxicated" and "driving under the influence" (collectively "DWI") interchangeably in this opinion, we do not imply that there are not critical legal differences among them which may arise in the future.

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