Breaking: Immigration Consequences from a DWI Arrest
Immigration Consequences from a DWI Arrest
The Department of State has started revoking visas of foreign nationals legally in the United States after a DWI or DUI arrest. Collateral Immigration Consequences from a DWI arrest of the harshest kind. Merely an arrest, not a conviction triggers the potential revocation. Given the subjective nature of DWIs and potential for abuse, this new policy is frightening.
Currently the foreign national remains in lawful status after revocation, but is unable to apply for future admission to the United States. There are cases of immigration consequences from a DWI arrest within weeks of the arrest.
Not only may your visa be revoked, but your ability to travel abroad may be in jeopardy. Recent reports suggest visa holders traveling abroad are finding it difficult to re-enter the United States. Those most affected are students with J-1 visas.
These immigration consequences from a DWI arrest were implemented Nov. 5, 2015 and the department has wasted little time putting their new tool to work. Responding to critics, the Department said, “It is both a public safety issue and evidence of possible visa ineligibility.”
Previous DWI immigration consequences surrounded convictions. Consular officials have been required since 2007 to refer visa applicants with a DUI or DWI conviction in the a) past five years or b) two or more in the past 10 years to a physician. The physician is then charged with determining whether the applicant should be ineligible for a visa under a provision barring applicants classified as having a “mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety or welfare of the alien or others.”
In light of recent trends, it is clear the State Department is taking not only DWI & DUI convictions seriously, but arrests as well. If you are a foreign national and arrested for DWI or DUI you need to not only have an immigration lawyer, but a qualified DWI lawyer on board to fight the government’s accusations. Given these recent, harsh DWI arrest immigration consequences, Uber never looked so good.
Adamo & Adamo Law Firm Attorney Named 2016 Top Houston Lawyer
Sam Adamo Jr., a criminal defense attorney at the Houston based Adamo & Adamo Law Firm, was recently tabbed as one of Houston’s best criminal lawyers for 2016 by H-Texas Magazine.
Veteran Criminal Defense Attorneys – Eliminate the Threat
Recently media outlets reported the Navy Seal responsible for shooting and eliminating Osama bin Laden was charged with DUI. Now, this special-ops veteran, willing to sacrifice his life to protect the United States, its people, and the government finds himself being prosecuted by that very same institution.
While the majority of veterans return home stronger and wiser from their service, many others bring their war home. Silently suffering from invisible injuries like Post-Traumatic Stress Syndrome (PTSD) and Traumatic-Brain-Injury (TBI). Feeling as if their native land is enemy territory, post-combat veterans may become confused and threatened. Trained to eliminate the threat, veterans fall victim to alcohol and substance abuse. As time progresses these symptoms worsen. When self-destructive, reckless and violent behavior turn to criminal behavior, should we be all that surprised?
Eliminate the Threat:
Early on and as part of a soldier’s training, the United States government employs an intensive psychological conditioning program encouraging violent reactions to threats. Fortunately for civilization, the vast population is not wired to kill and doing such is unnatural. In order to simulate warfare, combat-training focuses on turning that unnatural act into a natural one. Doing so not only enhances the likelihood of survival, but success and victory as well. Soldiers minds are shaped to reactively eliminate all threats. The end product yields an instinctive killing machine. However, once service concludes, they are not adequately deprogrammed. When such unnatural training joins forces with psychological trauma, violent and criminal acts are a real possibility.
A Veteran’s War at Home:
Psychological trauma has long been a recognized consequence of veteran combat. Service related illnesses such as post-traumatic-stress-disorder (PTSD) and traumatic brain injury (TBI) have been associated with struggling veterans re-entering society post-tour. Veterans trying to cope with the battlefield horrors and families and communities unable to understand make American returns especially difficult. These invisible-injuries are often unreported and untreated, leading veterans to self-medicate with alcohol and drugs. Over time these substances exacerbate symptoms before the troubled veteran spirals downward into self-destructive, reckless, violent or criminal behavior. Even treated, medical professionals have linked anti-depressants to manic-like reactions, aggressiveness, suicide, loss of impulse control and violence. 1 It has been a reported there are 22 veteran suicides a day. That’s 22 a day!
While recorded history dating back to early wars suggest psychological trauma may manifest into criminal behavior, only recently has this been studied. 2
The National Science Institute of Medicine (IOM) in 2012 released a report finding, “PTSD is commonly associated with substance abuse, unregulated anger, aggressive behavior, and hazardous use of alcohol, all of which are, themselves, associated with legal problems and incarceration.” 3
Prior to that report, in 2009, following a highly publicized wave of homicides and other violent crimes committed by returning soldiers, the Army commissioned a study known as the Epidemiological Consultation, or EPICON. 4 EPICON attributed two major factors to post-deployment violent behavior: (1) repeated deployments and (2) the intensity of combat in those deployments. The more soldiers were exposed to combat, the more they showed effects. This study is especially troubling in light of America’s most recent war and the number of multiple combat tours troops have served. Reports show a large number served at least two tours, with special-ops serving over twelve tours. 5 In contrast during World War II and Vietnam the majority of troops served only one combat tour. 6 The above mentioned IOM report listed over 500,000 PTSD diagnosed veterans from Iraq and Afghanistan and expects that number to climb. [see Comm. on the Assessment of Ongoing Efforts in the Treatment of Post-traumatic Stress Disorder, Inst. of Med. of the Nat’l Academies, Treatment for Post-traumatic Stress Disorder in Military and Veteran Populations: Initial Assessment at 322. [/ref] That number does not include the many veterans who are self-medicating and yet to be medically diagnosed. The evidence clearly supports there is a high number of post-combat veterans in America wrestling their inner-demons.
The State of the Criminal Justice System and Veterans:
In the past, post-combat trauma turning into criminal behavior had been discarded by the criminal justice system. Veterans were sentenced to prisons, asylums, or chronic homelessness. In fact, a 2004 report by the Bureau of Justice Statistics found, despite having shorter criminal records, veterans reported longer prison sentences than nonveterans (on average 22 months longer). 7 The justice system viewed soldiers as a threat, instead of focusing on the actual threat, their mental health.
Fortunately progress is being made. The federal government, for example, under Section 5H1.11 of the U.S. Sentencing Guidelines illustrates the need to distinguish the veteran defendant from other defendants via service and experiences. Similarly the United States Supreme Court in Porter v. McCollum (2009) highlighted failure of defense counsel to present the veteran’s combat service and resulting trauma at sentencing was sufficient grounds to support a claim of IAC.
State courts have followed suit implementing a number of veteran courts specifically designed to treat as opposed to sweeping soldier’s internal issues under the rug. Low-level offenses often end in dismissal under these programs, allowing veterans the opportunity to expunge or erase the incident entirely. Houston courts have initiated such programs for veterans.
Growing sympathy for veterans from the prosecutorial side has even shown to be significant. A study polled 35 prosecutors from various states and found “overall, prosecutors view veterans as less-blameworthy for low-level offenses than nonveterans.” It was also shown veterans were offered heavy treatment programs as opposed to jail or probation like the counterpart nonveteran defendants. 8 Jennifer Kelly Wilson, et al., Prosecutor Pretrial Attitudes and Plea-Bargaining Behavior Toward Veterans With Post-Traumatic Stress Disorder, 8 Psychol. Services 319, 322. 326 (2011). From a practice standpoint, I have found prosecutors eagerly willing to listen and accept documents supporting a veterans criminal case.
Defending the Veteran:
Similarly, defense counsel for veterans have become more aware of mental illnesses a veteran may be struggling with. Using such things as VA medical records, service records, honorable discharges, honors and awards, etc., criminal defense attorneys are able to paint a complete picture to the trier of fact. This picture provides an outlet for the decision maker – whether it be the dismissal of charges, a not guilty verdict, or a mitigating sentence.
One cannot predict who will and will not suffer from these silent and invisible injuries. I know and have spoken with veterans who have come back and been able to channel their inner-struggles into something positive. Strong community ties and supports systems assist them greatly. Unfortunately, not everyone is able to shake what they have endured and witnessed. I have great admiration and respect for all veterans. For those still at war with themselves we must continue providing healing environments. We must eliminate the threat.
Notes:
- Exploring the Relationship Between Medication and Veteran Suicide: Hearing Before the House Comm. on Veterans Affairs, 111th Cong. (2010) (statement of Dr. Peter Breggin, Psychologist), available at http://democrats.veterans.house.gov/hearings/Testimony.aspx?TID=65592&Newsid=525. ↩
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A Revolutionary War veteran, describing conditions in South Carolina after the war, wrote, “Highway robbery was a common occurrence, and horse-stealing so frequent that the legislature made it a crime punishable with death.” Allan Nevins, The American States During and After the Revolution, 1775-1789, 454 (1924). Additionally, after the Civil War, a great wave in crime and disorder was documented. Historian and attorney Eric T. Dean, Jr., noted: The Civil War “let the genie out of the bottle,” as the violence of the war years spilled over into civilian life in the post-war era. During the war, soldiers had been trained to kill and thereby threw off the restraints of civil society and accepted a life of violence; there was no immediate way to put an end to the habit of violence and reintroduce all of these men to the industrious and peaceful vocations of life. In both the North and the South a period of turmoil followed the end of the war. Eric T. Dean, Jr., Shook Over Hell: Post-Traumatic Stress, Vietnam, and the Civil War, 98 (1997). ↩
- Comm. on the Assessment of Ongoing Efforts in the Treatment of Post-traumatic Stress Disorder, Inst. of Med. of the Nat’l Academies, Treatment for Post-traumatic Stress Disorder in Military and Veteran Populations: Initial Assessment, 322 (2012). ↩
- U.S. Army Center For Health Promotion and Preventive Medicine, Epidemiologic Consultation No. 14-Hk-Ob1u-09: Investigation of Homicides at Fort Carson, Colorado November, 2008–May 2009, ES-1 (2009). ↩
- Mark Owen & Kevin Maurer, No Easy Day: The Firsthand Account of the Mission That Killed Osama Bin Laden (2012) (author, a Navy SEAL who participated in the mission to kill Osama Bin Laden, notes that he participated in 13 combat deployments to Iraq and Afghanistan). ↩
- Jeremy Schwartz, As Soldiers Leave War Behind and Return to Fort Hood, What Comes Next?, Austin American-Statesman (Nov. 5, 2011, 8:23 PM), http://www.statesman.com/news/news/local/as-soldiers-leave-war-behind-and-return-to-fort—1/nRgxg/. ↩
- Bureau of Justice Statistics Special Report, Margaret Noonan & Christopher Mumola, Veterans in State and Federal Prison, 1 (2004). ↩
Recognizing Evidence Tampering in Criminal Cases
Criminal lawyers often receive evidence in the form of photographs, audio recordings, and video recordings.
In order to be admissible in court the image or recording must be authentic. Today, easy-access to software allows even the unskilled computer user to create a new reality in minutes.
Image-audio-video tampering is the addition, removal, or relocation of content in a previously authentic recording. Contrasting resolutions within an image, audio interruptions, and additional video components (e.g. picture-in-picture) can call the evidentiary authenticity into question. Science permits different methods to review whether evidence has been tampered with.
Photo Response Non Uniformity (PRNU)
PRNU is the unique noise profile imprinted by a recording device onto the produced file. The PRNU can be extracted from the recording and compared with the devices known PRNU. Unmatched profiles can indicate the evidence has been altered.
Electric Network Frequency (ENF)
By measuring the underlying frequencies from a recording, ENF allows the analyst to determine where and when a recording was created. This assists in finding if the recording was created where and when it was purported to be.
File Name Extensions
File name extensions are unique to the equipment manufacturer and if an image or recording has been altered the new file name extension may reveal bad faith.
Metadata
Metadata (e.g. GPS coordinates) can reveal facts about the recorder’s model number, user settings, physical location, and more. These values can then be compared by the attorney’s known case facts. A useful tool for criminal defense.
Light Test
Light travels in a straight line, until an object throws off it’s intended path. For an image the light test involves drawing a straight line that touches upon an object and it’s corresponding point on the shadow. This is repeated for each point on all objects casting a visible shadow from the light source. All the lines should intersect at the same point. If any line does not intersect at the light source, then the object touching this line may have been added.
Ear Test
With audio recordings, incomplete words, sudden audio background changes, vocal fluctuations, pauses, clicking sounds and repeated phrases may all indicate edit points and tampering.
Eye Test
Is the resolution of an image or recording consistent with the recording device? Video-dvd’s created via post recording leave open the possibility of altercation. Also, the appearance of title screens, picture-in-picture (PIP), zooming and speed changes on a video can be proof of the video has been altered.
Error Level Analysis (ELA) and Video Error Analysis (VELA)
This test recompresses image and video files to identify affected areas. Postproduction changes will be disproportionally affected greater. The results can also identify which editing software was used.
The testing methods above provide reliable tactics if authenticity of an image-audio-video is at issue. Even if the evidence has not been altered, information obtained can provide powerful tools for a trial lawyer to use in defending the case.
The Artist Formerly Known as HPD Crime Lab
From the early 2000s the Houston Police Department Crime Lab, currently known as the Houston Forensic Science Center, has exemplified scandal. It is indeed why Houston is the nation’s frontrunner in wrongful convictions and why Houston criminal defense attorneys cringe at the sight of a forensic report analyzed by the lab.
Notable lab issues since 2002:
2002: Forensic testing temporarily suspended. Over 6,000 untested rape kits discovered (this backlog persists until 2013 when the work gets outsourced for $4.4 million).
March 2003: New York times questions if the HPD Crime Lab is the worst crime lab in the country
Nov. 2003: Report on the destruction of DNA Evidence and the possibility of pardons.
December 2003: Internal investigation ends with nine HPD crime lab technicians suspended and one terminated for shoddy lab work, amongst other serious problems.
January 2004: The aforementioned terminated analyst is reinstated to previous position one month later.
May 2005: HPD receives national accreditation through Americans Society of Crime Lab Directors (ASCLD).
June 2005: A month after receiving national accreditation, it is reported HPD crime lab analysts faked drug evidence.
January 2006: Independent research and testing reveals of the 1100 reviewed samples, 40% of DNA samples, and 23% of blood evidence samples had serious errors.
October 2007: Houston Chronicle publishes allegations of HPD crime lab Employees cheating on an open-book proficiency test.
December 2007: HPD Lab analyst indicted on theft, tampering charges. Probe into 200 narcotic cases he handled.
January 2008: HPD shuts down DNA unit again.
December 2009: Irregularities and problems with HPD finger print analyses arise.
January 2010: HPD backlog problem. 300 cases in need of firearm forensics. Backlog on DNA cases continues.
July 2011: Former supervisors at HPD crime lab testify and quit over accuracy of alcohol tests.
Feb 2013: HPD crime lab tech admits to colleagues he wasn’t following protocol when tests found to be inaccurate. Investigation reveals additional lying, improper procedures, and tampering with evidence. He is not indicted by a grand jury.
2014: Nearly two dozen cases are effective after investigation reveals a Houston homicide detective was lying.
April 2014: Mayor transfers HPD Lab to a government corporation. Renames lab Houston Forensic Science Center (HFSC). 48 HPD officers employed by the lab that offices at HPD headquarters.
January 2014: Texas Forensic Science Commission issues a report finding professional negligence on the part of HFSC employees and DWI blood alcohol analysis.
February 2015: Rape-kit backlog cleared up.
May 2015: It is learned HFSC contaminated DWI blood alcohol evidence and failed to report and notify.
March 2016: Houston’s Office of Inspector General recommends the HFSC revise its policy procedures concerning quality control, following an investigation into contaminated DWI evidence.
March 2016: HFSC employee testifies analyst ignored court’s DWI discovery evidence and withheld exculpatory evidence.
April 2016: ???
In order to be admissible in court forensic evidence must not only be relevant, but reliable. The above list casts doubt on the reliability of any forensic evidence coming from the HFSC and any serious Houston criminal lawyer should proceed with caution.