COLLATERAL COLLATERAL CONSEQUENCES OF CONSEQUENCES OF

CRIMINAL CONVICTIONSCRIMINAL CONVICTIONS

& OTHER MATTERS TO & OTHER MATTERS TO CONSIDER IN CONNECTION CONSIDER IN CONNECTION

WITH CONVICTION & WITH CONVICTION & SENTENCESENTENCE

CIVIL & OTHER CIVIL & OTHER CONSEQUENCESCONSEQUENCES

May be more harmful than criminal May be more harmful than criminal consequencesconsequences

Defendants & Attorneys need to Defendants & Attorneys need to know to make informed decisions & know to make informed decisions & to properly advise clients & to to properly advise clients & to effectively negotiate plea offers.effectively negotiate plea offers. Use the civil impact as a factor for Use the civil impact as a factor for

reduced pleas.reduced pleas.

CRIMINAL RECORD CRIMINAL RECORD BARRIERSBARRIERS

Civic RightsCivic Rights Employment & LicensingEmployment & Licensing Public BenefitsPublic Benefits Student LoansStudent Loans HousingHousing Drivers LicensesDrivers Licenses Family Law/Rights Termination & Family Law/Rights Termination &

Child SupportChild Support Right to Possess FirearmRight to Possess Firearm ImmigrationImmigration Fees & FinesFees & Fines

CIVIC RIGHTSCIVIC RIGHTS

Right to Vote – Governed by State Law Right to Vote – Governed by State Law & in MI& in MI Voting barred when serving custodial Voting barred when serving custodial

sentencesentence Right restored upon release or if no Right restored upon release or if no

custodial sentencecustodial sentence Jury Service – Under Federal & MI LawJury Service – Under Federal & MI Law

Any conviction punishable by 1 year of Any conviction punishable by 1 year of more bars from jury servicemore bars from jury service. 28 U.S.C. §865(b)(5); MCL §§600.1307a(1)(e) & 600.1307(4).

Right restored only by PardonRight restored only by Pardon

MILITARY SERVICE MILITARY SERVICE & BENEFITS& BENEFITS

Felons ineligible to enlist in Felons ineligible to enlist in service.service. Secretary of the Branch may make Secretary of the Branch may make

“meritorious case”“meritorious case” exceptions. 10 U.S.C. exceptions. 10 U.S.C. §504. §504.

After 60 days in custody on any After 60 days in custody on any conviction- felony/misdemeanor no conviction- felony/misdemeanor no military pension, but may be paid to military pension, but may be paid to spouse/kids. spouse/kids. 38 U.S.C. §1505(a) & (b). 38 U.S.C. §1505(a) & (b).

PUBLIC OFFICEPUBLIC OFFICE Federal LawFederal Law – –

Only certain offenses bar holding public office by Federal Statute; i.e. no office for treason; bribing/accepting bribe - sentencing judge can order disqualified from federal office. 18 U.S.C. §201.

MI Law – MI Law – Felony Offense = removal from office. MCL

§201.3(5). Bribery/accepting bribe forever barred from

office. Other offenses have time limit before can be eligible for re-election.

Judge convicted of felony-guilty of misconduct & subject to possible removal.

FEDERAL OCCUPATIONAL FEDERAL OCCUPATIONAL RESTRICTIONS & RESTRICTIONS &

LICENSINGLICENSING Even if felony conviction not an absolute bar to license-but

relevant in reviewing application-sign of licensee’s character. 21 U.S.C. §823.

Some statutes bar licenses with convictions, like drug offenses, which result in loss of license to distribute/prescribe medication & the regulatory agency determines how long.

Fraud & other lack of honesty convictions can also bar from participation in federal contracts & programs (HUD; DOD).

Aviation occupations bar wide range of felons for 10 years.

Some convictions can bar from federal programs or contracts, i.e., fraud & other lack of honesty convictions can bar from participation (HUD; DOD).

MORE ON OCCUPATIONAL MORE ON OCCUPATIONAL RESTRICTIONS & RESTRICTIONS &

LICENSINGLICENSING Federal Statutes & Sentencing

Guidelines allow Court to impose occupational restrictions as condition of probation/supervised release when reasonably direct relationship exists between offense & occupational conditions reasonably necessary to protect public. 18 U.S.C. §§3563(b)(6) & 3583(d); U.S.S.G. §5F1.5(a).

MICHIGAN MICHIGAN OCCUPATIONAL OCCUPATIONAL

RESTRICTIONS & RESTRICTIONS & LICENSINGLICENSING Michigan law - licensing

board/agency cannot use conviction alone as proof of lack of good character - but is evidence in determination. MCL §338.42.

Several Licenses may be denied, suspended or revoked upon conviction for certain types of crimes:

Licenses Subject to Licenses Subject to JeopardyJeopardy

AccountingAccounting Security Guard, Private DetectiveSecurity Guard, Private Detective Law EnforcementLaw Enforcement FirefightersFirefighters Health Care, Long Term CareHealth Care, Long Term Care Schools/School ServicesSchools/School Services Day CareDay Care

CRIMES/OFFENSESCRIMES/OFFENSES

Security Guard/Security Alarm Security Guard/Security Alarm ContractorContractor

Felony bars with exception for hired Felony bars with exception for hired before 3/28/01before 3/28/01

Felony or misdemeanor for dishonesty or fraud, impersonating law enforcement or employee of US or MI, 2 or more alcohol related offenses, drug offenses, assault, illegal use, carry or possession of gun within last 5 years regardless of prior employment.MCL §§338.1056, 338.1067.

Law Law Enforcement/FirefightersEnforcement/Firefighters

Felony bars law enforcement employment. MI Admin. Code R 28.14203.

Firefighters can be refused certification for felony. MCL §38.510(2)(D).

Health Care Health Care (Doctor/Nurse/Pharmaceutical(Doctor/Nurse/Pharmaceutical

))Felony/2 year misdemeanor = license suspension.If drug offense cannot be reconsidered for 5 years & cannot work in pharmacy related jobs while under sentence. MCL §333.16221; MI Admin. Code R. 338.1609, 1635(6), 3145.

Medicare/Medicaid Fraud or Felony Drug Medicare/Medicaid Fraud or Felony Drug Offense - excluded from health care profession Offense - excluded from health care profession for significant time - excluded from federal for significant time - excluded from federal medicare/medicaid programs & the regulatory medicare/medicaid programs & the regulatory agency determines how long. agency determines how long. Also, felony drug conviction results in loss of Also, felony drug conviction results in loss of license to distribute/prescribe medication.license to distribute/prescribe medication.

Long Term CareLong Term Care

Tiered system sets out specific exclusion periods based on conviction –

life ban drug traffick offense; health care fraud; felony or misdemeanor patient abuse - even when finding of abuse, neglect or misappropriation non-criminal finding;15 year bar on felony assaults, CSC, weapon use, etc., 10 year on all other felonier & 5 years for several misdemeanor i.e. home invasion, negligent homicide, embezzlement.

Schools/School ServicesSchools/School Services

Sex offense bars;

Felony bars unless approval of school board & superintendent.

Teachers can loose certifications for a variety of misdemeanors.

MCL §380.1230, et. seq.; MI Admin. Code R 390.1201.

DaycareDaycare

Dept. Of Human Services - long list of felonies & misdemeanors that disqualify. Listed at MFIA website in Eligibility Manual.

Licensed Centers - sex offense bars; other offense can be denied for bad moral character (MI Admin. Code R 400.1152(1)(a)-(e)). MCL §722.115. 3)

In-home & Group Day Care similar to Licensed Centers.

Banks, Securities & Banks, Securities & CommoditiesCommodities

Banks-dishonesty, breach of trust or money laundering offenders cannot participate in affairs of an insured depository institution. FDIC can waive 10 years after some convictions become final. 12 U.S.C. §§ 1818(e),(g)(1)(C), 1829.

SEC-can limit, suspend, or revoke registration of investment advisor/broker/dealer for certain convictions (felony or misdemeanor) - theft, forgery, perjury, embezzlement, securities violations, counterfeiting, bribery & mail fraud, etc. within 10 years of conviction. 15 U.S.C. §§80b-3(e)(2), (e)(3), (f).

Commodities Trading-may refuse license, or suspend, revoke or place restrictions on licenses for certain convictions – fraud, theft, embezzlement, false statements, bribery, gambling, & federal tax offenses. 17 U.S.C. §12a(2)(D).

PUBLIC HOUSINGPUBLIC HOUSINGPrivate LandlordsPrivate Landlords - cannot evict for - cannot evict for conviction, but can refuse to rentconviction, but can refuse to rent

Federal Subsidized Housing (PHA)Federal Subsidized Housing (PHA) – – termination language in leasestermination language in leases

““any criminal activity that threatens the health, safety, any criminal activity that threatens the health, safety, or right of peaceful enjoyment” for tenants or or right of peaceful enjoyment” for tenants or ““any drug-related activity” on or near place, engaged any drug-related activity” on or near place, engaged in by tenant, any member of household, or even any in by tenant, any member of household, or even any guest under the tenant’s control;guest under the tenant’s control;Evict entire Household not just defendant.Evict entire Household not just defendant.

Anyone evicted on the drug-related activity Anyone evicted on the drug-related activity ground not eligible for federal housing ground not eligible for federal housing assistance for 3 years after eviction unless assistance for 3 years after eviction unless successfully completes a rehab. program. 42 successfully completes a rehab. program. 42 U.S.C. §13661(a).U.S.C. §13661(a).

PUBLIC HOUSINGPUBLIC HOUSING

Conventional Public Housing & Conventional Public Housing & Section 8 ProgramSection 8 Program:

Mandatory denial & ineligibility for sex offenders & methamphetamine producers. Presumptive denial & ineligibility for drug activity in past 3 years. Discretionary for drug crime; crimes threat to other residents. Here only have discretion to evict wrongdoer not entire family.

BUSINESS/STUDENT BUSINESS/STUDENT LOANSLOANS

FEDERAL GRANTSFEDERAL GRANTSIncludes grants, student loans, small business loans, & licenses.

Does not include welfare, retirement, veterans benefit, Social Security, health, disability, public housing, or other similar benefits.s.

DRUG TRAFFICKERSDRUG TRAFFICKERS Under 21 U.S.C. §862(a), benefits

excluded for offenses after 9/1/89, as follows:

1st offense up to 5 years (discretionary);1st offense up to 5 years (discretionary); 2nd offense up to 10 years (discretionary);2nd offense up to 10 years (discretionary); 3rd offense permanently (no discretion)3rd offense permanently (no discretion) GET Court to Recommend Waiver in JudgmentGET Court to Recommend Waiver in Judgment..

Disqualification may be suspended under §862(c) with rehabilitation efforts or proof of rehabilitation.

DRUG POSSESSERSDRUG POSSESSERS Drug Possessors-under 21 U.S.C.

§862(b) benefits excluded as follows:

1st Offense up to 1 year (discretionary);1st Offense up to 1 year (discretionary); 2nd/Subseq. Offense up to 5 yrs 2nd/Subseq. Offense up to 5 yrs

(discretionary)(discretionary) Again Get Language in JudgmentAgain Get Language in Judgment

Rules Don’t Apply to Cooperators

PUBLIC BENEFITSPUBLIC BENEFITSSocial Security/Food Social Security/Food

Stamps etc.Stamps etc.

NO Social Security Income (SSI) NO Social Security Income (SSI) benefits while in custody. DUTY TO benefits while in custody. DUTY TO REPORT incarceration. REPORT incarceration. 20 CFR § § 416.211, 416.1325, 416.708k.

If felony conviction also barred from If felony conviction also barred from disability (SSD) benefits. disability (SSD) benefits. 20 CFR § 404.468(a).

MORE PUBLIC MORE PUBLIC BENEFITSBENEFITS

Feds lifetime ban on certain benefits Feds lifetime ban on certain benefits for drug felony – food stamps, TANFfor drug felony – food stamps, TANF MI opted out – but only 1 of 11 states.MI opted out – but only 1 of 11 states.

Warrant ChecksWarrant Checks - Fleeing Felons or - Fleeing Felons or Probation or Parole Violator – Probation or Parole Violator – disqualifies from SSI, TANF, Food disqualifies from SSI, TANF, Food Stamps, Subsidized Housing.Stamps, Subsidized Housing.

FAMILY LAW

Defendants also face Parental Rights Loss with certain convictions &/or incarceration.

Defendants face Child Support Obligations & Mounting Debts

Could lead to more criminal convictions & incarceration.

Parental RightsRights can be terminated based on conviction for certain crimes against the child or murder of parent. MCL §712A.19(a)(2)(b).

Murder 1st & 2nd, CSC offenses & court finds termination in child best interests. MCL §712A.19b(3)(n)(i).

Offenses with element of force or threat of force, client subject to habitual, & finds termination in best interest. MCL §712A.19b(3)(n)(ii).

All similar other state or federal convictions. MCL §712A.19b(3)(n)(iii).

Termination for Custodial Sentence

Foster care last 15 out of 22 months unless compelling reason not too. MCL §712A.19a(6).

If incarceration will deprive child of normal home life for 2 or more years & no reasonable probability that can provide proper home within 12 mos. MCL § 712A.19b(3)(h).

CHILD SUPPORT

DRIVERS LICENSESDRIVERS LICENSES Some MI Statutes call for license Some MI Statutes call for license

revocation, suspension or restriction – revocation, suspension or restriction – i.e., drug crimes. i.e., drug crimes.

Drug offenses – statute includes Drug offenses – statute includes suspensions even when no car involved. suspensions even when no car involved. MCL §333.7408a.MCL §333.7408a. First Offense (or no priors for 7 years) = 6 First Offense (or no priors for 7 years) = 6

months suspensionmonths suspension Second Offense within 7 years = 1 year Second Offense within 7 years = 1 year

suspension. suspension. Must pay $125 reinstatement fee.Must pay $125 reinstatement fee.

More Statutory Drivers License More Statutory Drivers License ConsequencesConsequences

Teens convicted of minor in possession Teens convicted of minor in possession alcohol – mandatory suspension even if alcohol – mandatory suspension even if no car involved. MCL § 436.1703(5).no car involved. MCL § 436.1703(5).

Failure to pay Child Support can lead to Failure to pay Child Support can lead to suspension of drivers license, as well as suspension of drivers license, as well as some occupational license. MCL §§257e, some occupational license. MCL §§257e, 257.321(c), 24.292. Need Order 257.321(c), 24.292. Need Order rescinding from family court & pay $85 rescinding from family court & pay $85 clearance fee.clearance fee.

Secretary of State ActionSecretary of State Action

Secretary of State can suspend, revoke, Secretary of State can suspend, revoke, or deny licenses for certain convictions or deny licenses for certain convictions – not limited to the obvious driving – not limited to the obvious driving offensesoffenses

Defendants also be subject to separate Defendants also be subject to separate fines issued by Secretary of State under fines issued by Secretary of State under the Driver Responsibility Programthe Driver Responsibility Program

Many clients require court action to get Many clients require court action to get licenses back.licenses back.

FELONY & OTHER OFFENSES FELONY & OTHER OFFENSES Denial/RevocationDenial/Revocation

Murder/Manslaughter/Negligent Homicide (including Attempts)

Flee & Elude 1st & 2nd

2nd Felony involving Use of Auto

2nd UDAA

2nd Felonious Driving

2nd Reckless or Fraudulent Address Change

Offenses Leading to SuspensionsOffenses Leading to Suspensionsor Restrictionsor Restrictions

1 year suspensions1 year suspensions UDAA, Flee & Elude, Felonious Driving, A UDAA, Flee & Elude, Felonious Driving, A

Felony where Auto Used, Alter or Forge Felony where Auto Used, Alter or Forge DocumentsDocuments

90 day suspensions90 day suspensions Leaving scene of accident, fail to yield to ER Leaving scene of accident, fail to yield to ER

responder cause injury, reckless driving, theft responder cause injury, reckless driving, theft of fuel, unlawful use of license, malicious of fuel, unlawful use of license, malicious destruction trees/plants over 200destruction trees/plants over 200

DRIVER RESPONSIBILITYDRIVER RESPONSIBILITY

$ Driver must pay fees for 2 yearsDriver must pay fees for 2 years$ Category 1 – 7 or more points on record fee Category 1 – 7 or more points on record fee

increases with points - start at $100 increase $50 increases with points - start at $100 increase $50 per pointper point

$ Category 2 – qualifying convictions & driving Category 2 – qualifying convictions & driving offenses ranging from $150-$1000offenses ranging from $150-$1000

$ Fail to pay = SUSPENSIONFail to pay = SUSPENSION

$ And must pay $125 Reinstatement FeeAnd must pay $125 Reinstatement Fee

$ Add this to costs of incarceration, costs of Add this to costs of incarceration, costs of supervision/tethers, & court fines & costs.supervision/tethers, & court fines & costs.

Category 2Category 2

$ $1000 – Felony where auto, snowmobile or $1000 – Felony where auto, snowmobile or ORV used, OWI, Death or Injury Driving ORV used, OWI, Death or Injury Driving Offenses, CDL Manufacture/Distribute Drugs, Offenses, CDL Manufacture/Distribute Drugs, Flee & Elude 1Flee & Elude 1stst-4-4thth, manslaughter, negligent , manslaughter, negligent homicide, murder (auto used), UDAAhomicide, murder (auto used), UDAA

$ $500 – Reckless Driving, DWLS injury or $500 – Reckless Driving, DWLS injury or death, Operate impaired or with presence of death, Operate impaired or with presence of drugs, Under 21 with BAC, Child drugs, Under 21 with BAC, Child endangermentendangerment

$ $200 - no proof of or no insurance.$200 - no proof of or no insurance.$ $150 – no operators, DWLS or not valid, $150 – no operators, DWLS or not valid,

license expiredlicense expired

FEDERAL FEDERAL SEX OFFENDER REGISTRYSEX OFFENDER REGISTRY

Federal Offenders must register in state Federal Offenders must register in state where reside, employed or in school. where reside, employed or in school. 42 42 U.S.C § 14072(i)(3), (i)(4).U.S.C § 14072(i)(3), (i)(4).

Failure to register or update & traveling Failure to register or update & traveling interstate or leaving the state is Federal interstate or leaving the state is Federal FELONY under FELONY under 18 U.S.C. §2250.18 U.S.C. §2250.

MICHIGAN MICHIGAN SEX OFFENDER REGISTRYSEX OFFENDER REGISTRY

Sex offenders (& other specified offenders Sex offenders (& other specified offenders – kidnapping or prostitution under 18, 2– kidnapping or prostitution under 18, 2ndnd indecent exposure, pandering, etc.) must indecent exposure, pandering, etc.) must register where reside, employed or in register where reside, employed or in school. MCL school. MCL §28.723.§28.723.

Also subject to criminal penalties if fail to comply Also subject to criminal penalties if fail to comply – offenses vary depending on type of violation – offenses vary depending on type of violation and number of priors. MCL §28.729.and number of priors. MCL §28.729.

FIREARMS RIGHTSFIREARMS RIGHTS