Although they, admittedly, happen much more infrequently than DUI-related car accidents, alcohol-related boating accidents can be just as deadly. During the height of the summer season, it is always a good idea to remind friends and loved ones of the risks associated with boating under the influence of drugs or alcohol.

These recent BUI stories remind us of the consequences of operating a boat while intoxicated.

Skipper Liable for Allowing Intoxicated Man to Pilot Boat

Percy Small and Matthew Reynolds are now well aware of what can happen when one mixes alcohol with boating. During an evening outing with 12 friends in Sydney Harbor, the boat that the men were piloting crashed, killing six of their friends. Each of the men faces a minimum of five years and maximum of seven and a half years in jail for their participation in the tragedy.
The group began the evening drinking at a local hotel and later moved the festivities to the house of one of the partygoers, where they continued to drink and take drugs. The manager of the hotel had too much to drink and asked Reynolds to take him by boat to drop off a set of hotel keys. Reynolds agreed and borrowed a boat large enough for twelve of his friends to join him on the errand.

While on board, the group continued drinking and doing drugs. On the way back from delivering the keys, the group stopped the boat at one of the light markers in the harbor and remained there for a period of time. At 2:30 in the morning, on the way back to shore, the group’s boat hit a fishing boat. Six of the group perished; the youngest was just 20 years old. Reynolds’ girlfriend was among the dead.

During a subsequent investigation, it was revealed that Reynolds was not piloting the boat at the time of the incident. Instead, he allowed Small to navigate even though Small was too intoxicated to drive. During the evening Small had been smoking pot, had snorted cocaine, and had a blood alcohol content (BAC) of .124.

Small was charged with dangerous navigation causing death and Reynolds was charged with manslaughter. During criminal proceedings, both Reynolds and Small appeared to be remorseful about what had transpired that fateful evening. However, Reynolds refused to take responsibility for taking the boat and Small claimed he was simply doing what Reynolds told him to do.

Reynolds blamed both the hotel manager for asking him to drive him and Small for claiming that he had a license to drive the boat. Further, the defendants attempted to blame the fishing boat pilot for failing to maintain a proper path and avoid colliding with the party boat.

BUI Tragedy in Nebraska

Todd Spangler of Omaha, Nebraska was recently convicted of manslaughter and sentenced to up to four years in prison in connection to the death of a family friend during a boating incident.

Spangler’s blood alcohol content was over twice the legal limit for driving an automobile while he was driving his boat on a lake in
Douglas County.

Spangler’s wife, Kimberly, and family friend Jennifer Finke-Dwyer were riding in an inner tube that was being towed by the boat that Todd was piloting. Unfortunately, Todd turned the boat too sharply and the women were slammed into the dock. Finke-Dwyer, aged 30, died from blunt force trauma to her liver. She had been working on her doctorate at the University of Nebraska.
Although he showed remorse for his actions, the judge refused Spangler’s request for probation and sentenced him to two to four years in prison; he’ll be eligible for parole in approximately one year. Spangler had faced up to 20 years in prison.

Criminal Liability for Failing to Aid in Drug Overdoses

A 23-year-old man was sentenced to 20 years in prison recently by a judge in Georgia in connection with a fatal heroin overdose. Warren Ullom, singer with the Atlanta-based rock band “The Judies,” had pleaded guilty to voluntary manslaughter in the death of 32-year-old Rachel San Inocencio. Ullom was also convicted of possession and distribution of heroin and cocaine.

The circumstances surrounding the death take it out of the realm of mere “accidental” overdose and make it something entirely more sinister. Actions taken by Ullom that fateful day not only exacerbated San Inocencio’s already precarious position, but may also have prevented her from getting life-saving treatment.

On June 6, 2008, just days after the couple met, San Inocencio and Ullom shot heroin at Ullom’s apartment; San Inocenico became ill shortly thereafter and lost consciousness. Instead of calling 911, Ullom texted one of his friends and told him to bring over some cocaine to help revive San Inocencio. When his friend arrived with the drugs, Ullom proceeded to inject the fallen woman with two doses of cocaine. Upon leaving the apartment, Ullom’s friend called 911, but didn’t give the dispatcher the correct address. In the mean-time, Ullom sent the friend another text indicating that San Inocencio was feeling better and didn’t need an ambulance.

San Inocencio died thirty minutes later and was pronounced dead by emergency workers who responded to Ullom’s own belated 911 call. Ullom stashed the remaining coke in San Inocencio’s purse and told unsuspecting police officers to take it with them when they collected the body. To make matter’s worse, Ullom later pawned San Inocencio’s diamond earrings.

Ullom had originally been charged with felony murder, which carries with it a mandatory 30-year minimum sentence. However, he later pleaded guilty to a lesser offense. His lawyer claims that the heroin dealer who sold Ullom the drugs was the party responsible for the tragedy.

In anticipation of his incarceration, the singer and his band played farewell performances, made a DVD, and recorded some additional songs.

Ullom’s case, however, pales in comparison to the story of Carly and Andrea Townsend. In 2008, Carly’s mother, Andrea, was found guilty of manslaughter due to neglect in the death of her teenaged daughter after failing to call emergency personnel when Carly overdosed on heroin. Carly’s twenty-six year old sister, Gemma, was also charged in the crime.

During the trial, Andrea Townsend claimed that Carly’s lips briefly turned blue after taking the heroin, but that they eventually returned to normal color. Townsend also claimed that Carly was mumbling, and thus, not in any danger. Townsend was downstairs watching TV while her daughter was passed out upstairs, but insisted that she “listened” from the living room door a number of times and heard her snoring. Townsend refrained from calling an ambulance for fear that she or her daughter would get in trouble.

Sixteen-year-old Carly had been taking drugs for two years and had recently been released from a juvenile detention center into her mother’s care. It was revealed that 20 of Carly’s friends had recently died from heroin overdoses.

http://www.ajc.com/news/atlanta-rocker-convicted-in-544100.html?cxntlid=thbz_hm

http://www.walesonline.co.uk/news/wales-news/2008/04/18/mother-of-drug-overdose-girl-found-guilty-of-manslaughter-91466-20782361/

It’s no secret that insurance companies are in business to make a profit. They agree to compensate policyholders in the event something unexpected happens; policyholders agree to pay money each year, regardless of whether compensation is actually paid out.

Insurance companies commonly use three methods to maximize potential profits. First, insurance companies make more profit when claims are not filed and, thus, try to only take on policyholders where the risk of a claim being filed is low. Second, even if the applicant is high-risk, if the threshold of “unacceptable” risk is not met, the company may cover the individual, albeit at premiums high enough to cover the increased risk. Finally, insurance companies will often deny a claim on an otherwise valid policy if there is a legal way to do so. One major problem for insurance companies is that they cannot always determine, in advance, that a potential customer is high-risk; they only discover the problem once a claim has been filed.

People with active substance abuse issues, such as alcoholism or drug addiction, are one subclass of high-risk policyholders that may experience problems either obtaining insurance at affordable rates or, even if insured, getting claims paid out. How could this be legal, you ask? I asked the same question, and was shocked at what I discovered.

Even though in recent decades mental health practitioners and doctors have classified substance abuse issues, such as alcoholism and drug addiction, as illnesses, old stigmas and stereotypes of the past have not completely eliminated discriminatory practices against substance abusers in the private sector or government.

The Uniform Accident and Sickness Policy Provision Law of 1947

The UASPPL was a model law drafted in the 1940’s to guide states in developing legislation to regulate the insurance industry. What’s a model law drafted in the 1940’s got to do with insurance coverage today? Well, many states adopted this model law and have yet to make modifications to it! The law allows for wide-scale discriminatory practices by insurance companies against people who actively suffer from untreated alcohol and drug addiction. Thirty-eight states and the District of Columbia adopted the USAPPL.

When drafted, the USAPPL was intended to prevent people from using insurance to protect themselves against the risk of unlawful conduct. One example of a provision in the model law states “insurer shall not be liable for any loss sustained or contracted in consequence of the insured’s being intoxicated or under the influence of any narcotic unless administered on the advice of a physician.” A similar provision allowed for exclusion of coverage for medical care after suicide attempts. The USAPPL holds alcoholics, drug addicts and those who attempt suicide on the same level as, say, criminals.

Denial of medical claims of active alcoholics and other substance abusers

Health insurance claims for substance abuse issues come in two forms. The first type of claim is for treatment of the underlying substance abuse. If a health insurance policy offers coverage for substance abuse treatment, the company cannot deny claims related to that treatment such as admission to an addiction treatment center. This type of coverage is not the focus of the USAPPL.

However, alcoholics and drug abusers often injure themselves in the course of drinking or taking drugs. Alcoholics typically find themselves in the emergency room after a DUI accident, or as the result of alcohol poisoning. Drug addicts are commonly treated in emergency rooms for overdoes. Chronic alcoholics and drug addicts can even contract life-threatening illnesses such as cancer or cirrhosis. For these types of injuries, many health insurance companies can legally refuse to pay for medical treatment if 1) the claim arose from the insured’s use of alcohol or drugs, and 2) there is an exclusion provision for substance abuse-related illness and injury in the policy.

In recent years, doctors and hospitals have come under fire from mental health professionals for failure to diagnose and treat alcohol and drug related issues, especially if the problem presents itself during a substance-related trauma. While it is commonly believed that substance abuse and related injuries can only be reduced with proper diagnosis and intervention, trauma and primary care doctors often fail to address the underlying substance abuse issue when they have the chance. Why?

The idea that a health insurance claim could be denied due to an insured’s substance abuse problem puts doctors in an untenable position. On the one hand, doctors know that chronic substance abuse issues, if left untreated, could be life threatening to the patient or to others. The proper course of treatment for a patient who is a potential substance abuser would include, at a minimum, laboratory testing to uncover the presence and extent of the problem.

However, doctors also know about the USAPPL substance abuse provision and, therefore, are faced with a moral dilemma. If a doctor documents that substance abuse caused a medical claim, insurers can refuse to pay the doctor or hospital for treatment and the cost will likely be borne by taxpayers or will result in an increase of fees charged to the general public. Doctors also know that the inability to get coverage for future medical care, such as expensive treatment for liver cancer, could be a death sentence for a patient. On the other hand, doctors must uncover the full extent of the medical problem in order to adequately treat the patient. This requires testing, the results of which are discoverable by an insurance carrier.

Doctors have responded to the dilemma by reducing or eliminating laboratory testing for drugs and alcohol. As a result, insurance companies have begun mandating testing upon admission for certain types of injury; they have also lobbied state legislatures to also start requiring hospitals and doctors to undertake such testing. Connecticut now requires acute care hospitals to record the extent and outcome of any screening for alcohol for each patient, under established protocols.

Lawsuits arising from medical claims denied due to alcoholism or substance abuse

Most state courts have been unwilling to entertain fairness or discrimination arguments against imposing USAPPL-type exclusions. In the states where the USAPPL has been adopted, lawsuits filed by policyholders over denied claims are typically unsuccessful if the insurance company has been diligent in using that state’s required exclusion language in policy documents.

Courts vary in the degree of causation that the insurance company is required to prove. Although all courts require the insurance company to show at least some connection between intoxication and the injury, a “causal” connection is not necessarily required.

For example, in Illinois insurance companies need only prove that the insured’s blood alcohol content (BAC) was .10 or higher when the injury occurred in order to deny a claim. See, Burgess v. JC Penny.

On the other hand, Florida courts have come down hard on insurance companies by requiring them to show a high degree of causation. In Blue Cross v. Steck, the intoxicated policyholder was hit by an oncoming vehicle while attempting to cross a busy highway. Steck lost a leg and incurred roughly $350,000 in medical bills. The Court divided possible alcohol-related injuries into two categories. The first category, deemed “direct” injury, included alcohol poisoning and liver damage. “Indirect” injury included injuries from motor vehicle accidents. The Court held that Steck’s injuries were not excludable because Blue Cross’s policy language was not specific enough to exclude both direct and indirect injuries.

As federal legislation for health care reform is implemented over the coming years, it will be interesting to see if injuries and illnesses related to alcoholism and drug addiction will be deemed the type of “pre-existing” conditions that are immune from the exclusionary practices of insurance companies. ]]> http://addictiontreatmentmagazine.com/addiction-news/addiction-the-law/untreated-alcoholism-and-drug-addiction-can-lead-to-loss-of-health-insurance-coverage/feed/ 0 http://addictiontreatmentmagazine.com/addiction-news/addiction-the-law/underage-purchase-and-consumption-of-alcohol-in-the-united-states/ http://addictiontreatmentmagazine.com/addiction-news/addiction-the-law/underage-purchase-and-consumption-of-alcohol-in-the-united-states/#comments Mon, 12 Apr 2010 17:00:00 +0000 Addiction-Treatment-Magazine http://addictiontreatmentmagazine.com/addiction-news/addiction-the-law/underage-purchase-and-consumption-of-alcohol-in-the-united-states/

Underage drinking is a problem in all 50 states. Not one has introduced a law or policy that can effectively wipe out the risk of minors acquiring and consuming alcohol. Some states, however, are more effective than others at prevention, education and discipline in the area of underage drinking.

The National Survey on Drug Use and Health (NDSUH) administers a national survey that includes questions on the use of alcohol by adolescents. While all 50 states have made it illegal for anyone under the age of 21 to be in possession of alcohol, adolescents are still acquiring it and still consuming it.

Each state has had authority for alcohol control since 1933, and with information provided by surveys like the one given by the NSDUH, the states can improve their programs to prevent and educate adolescents about the risks of alcohol use.

The NSDUH questions respondents about their alcohol use in the last 30 days, including asking those who have consumed alcohol in the last 30 days whether they paid for the alcohol. Those who did pay for the alcohol are asked whether they purchased the beverage or paid someone else to buy it for them.

The results of the survey found that 27.6 percent of individuals between the ages of 12 and 20 drank alcohol in the last month. Utah reported the lowest past-month alcohol use at 13.7 percent, while North Dakota and Vermont came in highest at 40.6 percent and 40.4 percent, respectively.

Six out of ten states with the highest past-month alcohol consumption were in the Northeast, and six of ten states with the lowest past-month alcohol consumption were in the South.

Of those who consumed alcohol in the past month, 8.6 percent purchased their own alcohol the last time they drank. Alaska and New Mexico reported the lowest rate of adolescents purchasing their own alcohol, at 3.1 and 3.7 percent. Louisiana and the District of Columbia had the highest rates, both at 18.8 percent.

Six of the states with the highest rates of self-purchased alcohol were in the South (Alabama, Louisiana, Maryland, Mississippi, South Carolina and the District of Columbia). Five of the states with the lowest rates of self-purchased alcohol were in the Midwest (Indiana, Nebraska, North Dakota and South Dakota).

The results of the survey highlight the continuing challenges to states to find new ways to address the problem of underage drinking. No state is unaffected by the risks teenagers take when they drink, and information provided by the NSDUH can give state officials the tools they need to make effective prevention and enforcement policy.

It is often easy to assume the war on drugs is centered on men, when in truth it is affecting an untold number of women. According to an Alertnet article, the rate of female imprisonment has increased by nearly 800 percent since 1977, and this number is still rising. Much of this increase is attributed to the war on drugs.

The Bureau of Justice Statistics shows that 40 percent of criminal convictions leading to incarceration of women at the turn of this century were for drug-related crimes. The latest victims are mothers, sisters and daughters, suffering in a system bent on punishment instead of rehabilitation.

Drug Czar Gil Kerlikowske has said it is time to evaluate how U.S. policies affect the women of this country. The gravity of the economic and social costs for such policies is essential, especially given the fact that more than 75 percent of women in prison are mothers.

There are some who argue that the incarceration for a drug-related crime should result in the termination of parental rights. The Adoption and Safe Families Act of 1997 dictates the initiation of the termination of parental rights proceedings if a child has been placed in foster care for 15 of the last 22 months.

A study by the U.S. General Accounting Office shows the median prison sentence for women is 60 months and as a result, the majority of mothers in prison lose their parental rights. More than 75 percent of women incarcerated in federal prisons are there on nonviolent drug offenses.

A study issued by the Sentencing Project showed that 1,706,600 minor children had an incarcerated parent in 2007, and half of these children were under the age of 10. Based on current statistics, many of these children will be incarcerated as juvenile offenders.

While a number of issues stand to divide Democrats from Republicans, one growing problem is uniting them to find a solution. According to a report in the State Bill News, drug addiction and crime are serving as the catalyst to unite leaders and the attorney general and state Public Defender’s Office as they aim to reduce sentencing for drug offenders while also identifying treatment opportunities from the cost savings.

House Bill 1352 encompasses these initiatives and was introduced in the House this past week with wide-ranging bipartisan sponsorship. Attorney General John Suthers noted that it is a rare day when the Public Defender’s Office and the attorney general appear together in support of a bill.

One key element to this bill is that it creates a distinction between possession of drugs and distribution of drugs through the reduction of sentencing for possession. It also focuses on treatment instead of incarceration for those drug offenders who are primarily addicts and not necessarily criminals.

The bill is sponsored primarily by Rep. Mark Waller, R-Colorado Springs, Sens. Pat Steadman, D-Denver and Shawn Mitchell, R-Broomfield and is based upon recommendations from the Colorado Commission on Criminal and Juvenile Justice. The core issue within this bill emerged out of recommendations that jailing non-violent drug offenders is not the best use of public-safety dollars.

“Incarceration is really not the right answer. The real problem with most prisoners is addiction,” said Steadman, in the State Bill News. “We need to be smarter with public resources by not simply warehousing drug addicts.”

Sponsors and supporters of this bill say the use of state resources for treatment leading to recovery will help to cut down on recidivism and save the state money in the long run. They also argue that it could help to prevent many crimes from being committed in the first place.

As a United States immigration attorney, I am routinely required to apply various grounds of inadmissibility, deportability and bars to naturalization to fact patterns presented by those hoping to enter, or stay in, the United States.

US immigration laws impose different eligibility standards on aliens depending on where they are, what benefit they are seeking, and their personal circumstances. Some bars to entry are waivable while others are not.

A related question, although admittedly rarely encountered in my practice, is how US citizens fare when attempting to visit or move to a foreign country. Do those same crimes, medical conditions, and immigration violations that plague aliens in America similarly affect US citizens abroad?

Any analysis of foreign immigration laws should probably begin with one of our closest neighbors. What would happen if you suddenly found yourself in Buffalo and wanted to do a little sightseeing up north? Advances in technology now make it possible for countries to exchange information about citizens, such as criminal history, with the click of a button. People with criminal history who, in the past, could travel freely to other countries may want to think twice before heading to the border.

Immigration regulations for Canada are found in the Immigration and Refugee Protection Act (IRPA) and make foreign nationals inadmissible on security grounds, human rights violations, criminal grounds, health-related grounds, financial grounds, misrepresentation, violation of Canadian immigration laws, and inadmissibility of family members.

Let’s face it, there are a few heinous crimes that would probably make someone inadmissible in most developed nations (murder comes immediately to mind). However, it may surprise you that Canada is actually stricter than the United States when it comes to who can pass through its border. Examples of offenses that may make one inadmissible to Canada include shoplifting, theft, assault, dangerous driving, illegal possession of a firearm, posession of illegal substances, assault with a deadly weapon, manslaughter, and driving under the influence.

Section 36(1) of the IRPA bars admission for serious crimes such as:

-convicted in Canada of an offense punishable by maximum imprisonment of 10 years or more or where an actual sentence of more than six months was imposed;

-convicted of a crime outside Canada that would be punishable by a maximum term of at least 10 years if committed in Canada

-committing an act outside Canada that is an offense where committed and, if it had been committed in Canada, would be punishable by a maximum term of at least 10 years.

Section 36(2) deems foreign nationals to be inadmissible after:

-having been convicted in Canada of an offense punishable by way of indictment or of two offenses not arising from a single occurrence;

-a foreign conviction that would constitute an indictable offense in Canada or two offenses not arising out of single occurrence that would be an offense;

-committing an act outside Canada that would constitute an indictable offense in Canada;

-committing, on entering Canada, an offense under the criminal code, the IRPA, the Firearms Act, the Customs Act and the Controlled Drugs and Substances Act.

Under Section 38(1) of the IRPA, a foreign national is inadmissible on health grounds if they are likely to be a danger to public health, public safety or cause excessive demand on health or social services. Medical examinations can be required, even for some temporary residence visas.

Unlike in the United States, Canadian immigration law treats families as one entity, denying admission based on the fact that a family member who has made a permanent resident application is inadmissible under one of the proscribed grounds.

In Canada, driving while under the influence is considered a felony for immigration purposes and makes the alien inadmissible. This is a huge departure from US immigration law where simple DUI convictions, without more, generally do not make a foreign national inadmissible or deportable. In determining inadmissibility for a DUI conviction that occurred in Canada, the punishment outlined in the Canadian Criminal Code is controlling. For foreign DUI convictions, it must equate to one of the categories in section 36(2).

Pursuant to the Canadian Criminal Code (section 253(1)), operating a motor vehicle or having the care or control of a motor vehicle, whether in motion or not, while impaired by alcohol or drugs or after consuming enough alcohol such that the blood alcohol content is .08 or above is classified as an impaired driving offense. Driving while impaired is an indictable offense or one that is punishable conviction and is liable for a minimum fine of $1,000 for a first offense, a minimum of 30 days imprisonment for a second offense and 120 days more for each subsequent offense. If prosecuted as an indictment (felony), the driver can be sentenced to up to five years; if prosecuted as a misdemeanor, the sentence can be up to 18 months.

Canada’s driving under the influence (DUI) law is a divisible offense, meaning it can be prosecuted either as a felony (indictment) or misdemeanor (summary conviction). Strictly speaking, only a felony makes a foreign national inadmissible to Canada. However, when there is a divisible offense, such as the DUI law, it is treated as a felony for immigration purposes. Thus, most US driving under the influence convictions would render the offender inadmissible to Canada without a pardon.

Consider, if you will, the list of US citizens who are likely barred from entering Canada due to driving under the influence convictions. Those unwelcome up north include Paris Hilton, President George W. Bush and his Vice President Dick Cheney, Ray Liotta, and Mel Gibson. The little matter of being completely inadmissible to a country that borders ours proved problematic when George Bush needed to enter Canada to carry on the business of our nation.

To get a pardon (the equivalent of the US immigration waiver) for a foreign conviction, the foreign national can apply for a “approval of rehabilitation”, or permanent waiver, at least five years after the end of the imposed sentence. This differs from US law in that some criminal convictions are waivable immediately upon the showing of extreme hardship. The Approval of Rehabilitation can be obtained at the Canadian visa offices in Buffalo, Detroit, Los Angeles, New York or Seattle. To qualify, the alien must show a stable lifestyle and that he is unlikely to be involved in future criminal activity. Factors include remorse for the criminal activity, acceptance of responsibility, change in lifestyle and stability in career and family life. This is much more broad, and arguably easier to prove, than the 601 hardship waiver in the United States. The 601 waiver requires a showing of extreme hardship to a qualifying US citizen or lawful permanent resident family member.

If convicted of a single, minor, offense outside Canada, including a simple DUI, the person is eligible for “deemed rehabilitation” after ten years. If there is a compelling reason to visit, the foreign national can apply for a temporary resident permit which will temporarily waive the ground of inadmissibility.

Just how the immigration laws of the United States and Canada can affect citizens on both sides of the border is illustrated in the story of Janeane Ardiel and David Williams, newlyweds who cannot live together as husband and wife but rather must limit physical interaction to brief meetings at the Peace Arch on the US-Canadian border.

Williams, an American with a DUI conviction, is barred from entering Canada based on his criminal conviction. Ardiel, a Canadian whom US immigration officials feels has immigrant intent, cannot enter the US as a tourist to visit her husband. After being denied entry by US officials, Ardiel started the legal process to obtain her green card, however the wait can take up to a year. In the meantime, the couple’s sole interaction occurs at a metal picnic table in a no man’s land between the two countries, probably under the watchful (invisible) eye of border patrol agents.

Williams and Ardiel are not the first couple to run into immigration issues, however, as evidenced by the fact that the site is a common meeting point for separated couples. Canadians and Americans can visit the park without breaking the law or crossing the border into the neighboring country. Williams and Ardiel’s story illustrates the facility of the long-held belief that spouses of US citizens are automatically entitled to live and work in the Unite States or, at the very least, have free access to visit the US citizen spouse. When a US immigration official believes that a visitor has immigrant intent, he or she will be barred from entering the United States and told to go get the proper visa. Depending on the circumstances surrounding the attempted entry, the personal may also incur a misrepresentation charge which will need to be waived by immigration officials.

While I fully support Canada’s right to exclude whomever they’d like from their great nation, I believe a little bit if quid pro quo is in order here. Therefore, would all Canadians who live here and/or work in American jobs and have a felony conviction or DUI proceed immediately to the nearest exit?

It will be interesting to see how Canada deals with criminal issues for visitors coming to watch the 2010 Olympic Games in Whistler and Vancouver in mid-February. Given that, historically, Americans have sometimes been able to cross the border into Canada with just a waive to the Canadian border patrol agent, a real danger exists that prospective Olympic spectators from the US will not research admissibility to Canada in advance and will be turned away at the border. Neither the Olympic organizers nor the Canadian government seems to going out of their way to warn unwary travelers about Canada’s rather strict anti-crime immigration policy. Cost of hotels, transportation and tickets to Olympic events? Thousands. Value of visiting the Canadian Embassy’s website to review admissibility rules for Americans before you go? Priceless.

Source

http://www.tdn.com/news/article_d89572e4-a18d-54f9-ab97-059a9cacbd04.html

“Give me your tired, your poor, your huddled masses yearning to breathe free…unless they are criminals, alcoholics, drug addicts, sick or really poor.” You may recognize the first part of that sentence as the most famous phrase from The New Colossus, the poem written by Emma Lazarus and etched on the Statue of Liberty over 100 years ago. It represents America’s history of encouraging foreign nationals, who are seeking a better life, to come to America to live and work. The second part of the sentence reflects current US immigration inadmissibility and deportability law under the Immigration & Nationality Act (INA), federal case law, and administrative regulations.

Many of my immigration attorney peers have barely hidden, or even completely transparent, contempt for United States immigration laws and the people who administer them. Some practitioners feel that we should have no border, that everyone who wants to come should be able to come, and that we should never ever “tear families apart” by deporting someone or barring their admission, no matter how dangerous or undesirable they are. That’s not me.

On the flip side, some immigration reform advocates label all aliens as criminals and feel that we should kick ‘em all out, lock the place down, and never interact with another foreign national again. That’s not me either. I’m somewhere in the middle. I believe that a sovereign nation has the duty to regulate its border in such a way does not harm it’s citizens or threaten its future existence by allowing terrorists into the country. We do not have room for everyone who wants to live in America, so exclusions need to be made. Thus, we get to be choosy. However, I believe that we treat certain individuals, such as those suffering from medical or psychological disorders, much more harshly than they deserve to be treated.

Like many social issues in the United States, immigration ignites passions on both sides of the aisle. But, compared to other civil rights movements like race or gender, some laws which regulate immigration in America do not reflect modern norms and need to be overhauled. Take HIV, a communicable disease whose mode of transmission was nailed down at least two decades ago; persons infected with the HIV virus were inadmissible to the United States up until…a few months ago. When the ban was enacted the public health risk of HIV was admittedly serious enough to warrant it, if only because no one knew for certain how it spread. But, even in the face of new evidence that the risk of transmission from casual contact was slim, the law was never repealed. How many thousands of individuals were made to feel the devastation of being told, “you’re not worthy of coming to the US” simply because our government was too lazy to, essentially, update a spreadsheet. And don’t get me started on the fact that being gay or having an extramarital affair could prevent you from becoming a naturalized US citizen. Still.

Drug Addiction & Alcohol Abuse

The same complaint can be made about the treatment of drug addicts and alcoholics by the INA and, to a larger extent, the people that make and implement the federal immigration laws. Over the past 10 years, states have turned the traditional way of handling drug addicts who commit addiction-related crime on its head. Gone are the days of mandatory jail sentences for drug offenders and zero tolerance for recidivism. Judges recognize that crime that occurs in conjunction with or to facilitate drug abuse will not stop until the abuser stops using. Jail does not work for these individuals, either because drugs can be obtained behind bars or because temporarily blocking access to drugs during a period of incarceration does nothing to help reduce the addiction; many start using again immediately upon release. Instead of sentencing addicted criminals to jail, many states sentence drug addicts to treatment, with reduced or eliminated criminal sanctions upon successful completion of the program. Studies show that the treatment model is more successful than the incarceration model in reducing recidivism.

However, substance abusers are treated particularly harshly under the federal immigration system; simply admitting to having been under the influence of an illegal drug can bar you permanently from immigrating to the United States. Although a few immigration laws recognize that drug or alcohol addiction is a disease, the major provisions regulating inadmissibility, deportability and naturalization continue to treat substance abusers like criminals. Given that be labeled by immigration authorities as a criminal, by itself, is not the same as a conviction in criminal court, why should someone care if they are deemed to be a “criminal” alien by immigration officials?

Criminal convictions or a history of criminal activity can have dire consequences for non-citizens who are in the US or want to come to the US. Removal of criminal aliens is a top priority for the United States government, and ICE (Immigration & Customs Enforcement) in particular. In 2007, ICE removed 275,00 aliens and initiated 165,000 new removal proceedings under the Criminal Alien Program. While aliens who suffer from strictly medical disorders, such as cancer or diabetes, escape the focus of ICE’s removal program, those who suffer with substance abuse can be deported as criminals under certain provisions of immigration law. Criminal defense counsel must be adept at advising clients on immigration matters, especially on the consequences of certain convictions or sentences under state and federal law. Conversely, immigration attorneys must know how certain criminal matters can effect a client’s immigration status or immigration benefit eligibility prior to filing a benefit application and exposing the client to potential issues.

It is important to understand that, unless someone is a US citizen, they are never completely insulated from running afoul of the US immigration system. A person’s eligibility to visit, live in or work in the United States is examined over and over again at various points in the immigration process. In addition, if an immigration official makes a mistake and admits someone who was actually inadmissible, immigration benefits can be stripped and the person can be deported.

Given this temporary nature of immigration benefits, it may seem that all eligible foreign nationals should apply for US citizenship as soon as they become eligible. However, given that applying for citizenship allows immigration officials to, once again, examine issues related to ineligibility, deportability and good moral character, it is essential to consult with an immigration attorney prior to filing a naturalization application. An immigration attorney can help identify issues that could not only make the person ineligible for citizenship, but could also get them deported.

ADMISSIBILITY

Unless you are an American citizen, you need permission to visit, enter or live in the United States. Although your right to be in America is re-evaluated at various times, all aliens must undergo an admissibility evaluation by an officer of the Customs & Border Patrol (CBP) when attempting to enter the United States at a designated port of entry. Even if you have been approved for and received a visa at a foreign consulate, United States CBP has the authority to determine that you cannot enter the United States and can turn you right around. A visa gives you the right to knock on the door; CBP decides whether or not to let you in. When evaluating whether or not a foreign national can enter, immigration officials refer to section 212 of the Immigration & Nationality Act (INA). For example, some applicants who have drug-related crimes or have been found to be addicts due to drug or alcohol issues may be barred from entering the United States.

DEPORTABILITY & REMOVABILITY

After a foreign national has been admitted, he or she does not have the right to stay here permanently. Events such as expiration of a visa, commission of a crime, or commission of an immigration violation can cause the United States government to roll up the welcome mat and send the alien home. Known as removal, or deportation, the process of determining if someone has the legal right to remain in the United States is regulated by section 237 of the INA. These deportation grounds determine an alien’s right to be in the United States unless, or until, the alien becomes an American citizen through naturalization.

GOOD MORAL CHARACTER

Certain immigration benefits are so valuable to a foreign national that not only must they overcome the grounds of inadmissibility and deportability, but they also must show that they have good moral character. Good moral character is more than just being a nice person. It is a legal term of art in immigration law and is a confusing concept for aliens, practitioners and even immigration officials to understand. Examples of benefits that require good moral character include naturalization, cancellation of removal and certain forms of relief for victims of domestic violence.

Figuring out exactly how the three major eligibility provisions of the INA (inadmissibility, deportability and good moral character) deal with drug addicts and alcoholics requires time, patience and organization. It also requires a fundamental understanding of the two major ways that drug addicts and alcoholics can be classified, sometimes simultaneously: those who are regulated by the medical provisions of immigration law and those who are regulated by criminal provisions of immigration law. Aside from the US tax code, US immigration law is probably the most complicated set of statutes and regulations that a lawyer has to navigate.

To complicated matters further, more than one section of the Immigration and Nationality Act may apply to a particular situation. For instance, a person applying for citizenship through naturalization must meet good moral character requirements (as discussed in Section 101(f) of the INA). However, in addition, the applicant will also be subject to the grounds of deportability under section 237 and, if any of those grounds apply, will be given a demand to appear at immigration court for deportation proceedings instead of an invitation to attend a citizenship ceremony. For adjustment of status, applicant must satisfy both the grounds of inadmissiblity found in INA 212, as well as the deportation grounds of section 237.

Any evaluation of an alien’s US immigration status or eligibility for benefits should begin with a thorough and comprehensive evaluation of his or her medical, criminal and immigration background. In addition to interviewing the client extensively about all facets of their background, copies of an FBI fingerprint check, arrest reports, sentencing reports, court transcripts, court dispositions, probation reports, and substance abuse treatment reports should be obtained so that the immigration attorney can get a very clear picture of how any criminal or medical issues will affect the immigration case.

Governments must work together with businesses to discourage minors from purchasing illegal products like alcohol and cigarettes and even drugs. Setting up consequences for the adolescents is one tactic, but adding a consequence for fooled businesses encourages them to take responsibility for evaluating each sale carefully.

A recent effort by the UK to discourage the use of false identification cards is failing, according to a survey by Clarity Commercce released last week. The initiative by the government, called Proof of Age Standards Scheme (PASS), was centered on creating ID cards for teenagers to combat underage drinking and tobacco use.

The study by Clarity shows that teenagers are getting around the government by buying fake and false IDs over the Internet for as little as £10. The cards look genuine and are fooling sales associates at businesses. The survey reports that the cards are purchased by 1 in 5 teenagers.

The fake ID cards are being used to get into clubs and pubs, but they are also being used to purchase alcohol, cigarettes and knives. Movie theaters and tattoo parlors are also targets for kids trying to use fake IDs.

In addition to buying fake IDs over the Internet, adolescents are also “borrowing” IDs. The survey reports that 78 percent of those over the age of 18 admitting that they have loaned their ID to an adolescent for the purpose of admission into a club. 45 percent of teens reported that they have asked an older sibling or older friend to buy them alcohol.

Not only are businesses being duped, but parents are missing the teens’ tricks also. 42 percent of UK teens say that they have used their parent’s credit card to purchase alchol, cigarettes, adult CDs or video games on the Internet.

Many UK retailers have taken drastic measures to combat the problem of fake IDs and avoid heavy fines from the government. Some train their sales associates to challenge customers who appear to be under the age of 25 and do not have proof of being over 18. However, this tactic has risks as well. Many legitimate sales can walk out the door if they are over 18 but have no proof in their wallet.

Businesses in Holland may have found a solution that will translate to businesses in other countries, including the UK. The businesses have employed a technology that allows an alarm to sound at check-out when a product requiring age-verification is scanned. Two cameras are aimed at the purchaser and an independent trained staff judge whether the customer appears to be of age.

While this strategy may not eliminate the use of fake IDs, it does take the pressure off the sales associate and may give pause to teenagers attempting to use them. The UK is planning to begin implementation of a similar system in 2010.

The United States Citizenship and Immigration Service (USCIS) is initially responsible for determining the immigration consequences of your DUI. The USCIS may find a DUI conviction to be a crime involving moral turpitue (CIMT) or a violent crime. Such a finding can lead to inadmissibility to the US, deportation from the US, denial of a green card during the adjustment of status process or a finding of lack of good moral character during the citizenship process. USCIS conducts FBI background checks during certain stages of the immigration process. Thus, it is not wise to lie about or omit a DUI conviction in your immigration paperwork as this could lead to a misrepresentation charge.

When considering the consequences a DUI will likely have on a client’s case, it is always necessary to explore the need for rehabilitation at a treatment center. Enrolling in an addiction treatment center is often desirable when the immigration officer has discretion to decide your eligibility for an immigration benefit or you are required to file a hardship waiver due to the DUI.

Generally, a single misdemeanor DUI (typically one which doesn’t involve bodily injury or death) is unlikely to have insurmountable negative consequences for an alien already in the US or hoping to come to the US. However, that does not mean that the immigration office will see your DUI as “no big deal.”

A crime involving moral turpitude is a ground of inadmissibility to the US and could result in deportation, denial of a visa or green card, or denial of entry into the US at a port of entry. Although the situation sounds dire, it is possible to waive this ground of inadmissibility with an immigration hardship waiver. In order to be considered a CIMT, a violation of a law must require that the offender had the necessary intent. Most states’ DUI laws have no intent requirement; you are either driving under the influence or not. However, certain aggravating factors, such as driving without a license, can turn a simple DUI into something more serious.

Aggravated felonies are another class of criminal convictions that can make someone deportable or inadmissible to the United States. Whether or not any type of criminal conviction (even a misdemeanor) is an aggravated felony for immigration purposes depends on how USCIS interprets the underlying criminal activity in relation to federal, not state, law. These crimes are usually violent in nature or are of a specific type and the sentence for which is a year or more in jail. Clients who incur multiple DUIs run the risk of becoming aggravated felons in the eyes of US immigration officers, especially when the combined sentences could result in jail time of more than a year.

When it comes to citizenship, everything a green hard holder does during their required period of residence is evaluated when it comes to deciding whether or not the applicant has the good moral character necessary for becoming a US citizen. In fact, officers can consider an applicant’s entire criminal history when conducting the evaluation. While you cannot be approved for citizenship while still on probation, sometimes it is wise to wait for an additional period of time after end ends before applying for citizenship so that the applicant can show good moral character from the time the probation ended. Another strategy is to show a commitment to safe and sober driving by enrolling at an addiction treatment center. A naturalization attorney can help decide the best strategy for your particular case.

Another area of concern for those convicted of DUI arises when the client must file a waiver of an inadmissibility bar. Even if the DUI itself did not trigger the bar, USCIS officers are permitted to investigate and consider an applicant’s entire background when making the waiver decision. For instance, for a 601 waiver, the applicant must show that his inadmissibility to the US would pose an extreme hardship on a US citizen or lawful permanent resident spouse or parent. However the analysis does not end at the hardship determination. The officer is further obligated to balance the hardship against any aggravating factors (such as criminal history) and with any mitigating factors (such as voluntary enrollment in an alcohol treatment center or other acts showing rehabilitation).

Finally, for those with multiple DUI convictions, care must be taken when attending any sort of immigration medical exam. At the exam, a doctor or psychiatrist is permitted to inquire about drug or alcohol issues, especially if there have been multiple DUIs. If the medical professional feels that the alcohol issue is serious enough, her or she could cause the applicant to be considered a habitual drunkard and, thus, not admissible to the United States.

Millie Anne Cavanaugh, Esq. is a Los Angeles immigration lawyer and former insurance defense attorney. She is licensed to practice law in California and Massachusetts. The information contained herein is provided for informational purposes only, and should not be construed as a solicitation for your business or as legal advice on any subject matter. You should not act or refrain from acting on the basis of this information without seeking independent legal advice.