Deportation and Driving: Felony DUI and Reckless Driving as Crimes of Violence Following Leocal V. Ashcroft
Davenport, Maria-Teresa, Journal of Criminal Law and Criminology
Every thirty-one minutes, someone is killed in the United States as a result of an alcohol-related motor vehicle crash. (1) Because of the high societal costs, it is hardly surprising that states impose severe penalties for driving under the influence ("DUI") (2) of alcohol as a method of deterrence. But how far these penalties can extend has serious implications on other areas of law; particularly in the arena of immigration law, the classification of DUI convictions has far-reaching consequences.
Some circuit courts (3) have ruled that aliens can be deported for multiple DUI offenses based on U.S. immigration law, (4) stating that aliens can be removed from the United States for committing an "aggravated felony." (5) An aggravated felony is a "crime of violence" in which the imprisonment term is at least one year. (6) Therefore, whether DUI is a crime of violence has significant impact on immigration law. Circuit courts that ruled DUI convictions were deportable offenses based their rulings on the determination that DUI is a crime of violence. (7) Other circuit courts disagreed and held that DUI is not a crime of violence. (8) The Supreme Court attempted to cure this circuit split in Leocal v. Ashcroft, holding that DUI is not a crime of violence, and therefore is not an aggravated felony that warrants deportation. (9)
This Note argues that while the Supreme Court reached the proper decision, it construed the question very narrowly. The Supreme Court addressed:
Whether, in the absence of a mens rea of at least recklessness with respect to the active application of force against another, DUI with serious bodily injury is a "crime of violence" under 18 U.S.C. [section] 16 that constitutes an "aggravated felony" under [section] 101 of the [Immigration and Nationality Act]? (10)
By answering this question in the negative, the Court made it clear that DUI convictions absent amens rea component or with amens rea of negligence are not deportable offenses. However, the Court explicitly refused to address whether an offense with amens rea of recklessness as to the use of force against another person or property of another may constitute a crime of violence under 18 U.S.C. [section] 16. (11) By failing to address this question, the Court did not determine whether felony reckless driving is a deportable offense, thus leaving much confusion and complication in this area of law.
Reckless driving, similarly to DUI, is a major societal problem in this country. It has been estimated that five percent of all motor vehicle fatalities are due to "[o]perating a vehicle in an erratic, reckless, careless, or negligent manner." (12) This translates to 2,132 of the 42,636 motor vehicle fatalities each year.
Though this case was recently decided, a potential circuit split has developed in the classification of reckless driving, an offense closely related to DUI. Because the term classification has such far-reaching consequences on aliens and the same reasoning used by courts in excluding crimes with a mens rea of negligence could have been extended to exclude crimes with a mens rea of recklessness, the Court should next determine that intent to use force is required for a crime of violence. This would exclude both DUI offenses and a felony reckless driving offense, thus fully curing the ambiguity in this area of law.
II. HISTORICAL BACKGROUND
Statutory authority for the deportation of legal aliens is derived from the Immigration and Nationality Act of 1957 ("INA"), (13) which grants the Attorney General the power to initiate deportation proceedings against legal aliens upon conviction of certain offenses. (14) Initially, the INA authorized deportation of a legal alien only for commission of a "crime involving moral turpitude." (15) The statute provides no definition for moral turpitude, but crimes such as fraud, murder, kidnapping, rape, prostitution, burglary, and theft have been determined by the courts to be representative. …