A Guide
Even a minor conviction can reach your job, your family, your home and your right to stay in the country. Here is what the courts call “collateral,” and why it is anything but.
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If you’ve never been in any trouble before but are reading this, chances are you are at least a little worried, wondering how this criminal case will affect your future. You probably already figured out that, if convicted, you’d have to do certain things, like pay fines, go to classes, maybe go to jail. Some of you may even go to prison for a time.
But what you may not know is how even a minor criminal conviction can affect your job, your family, where you live and what you do. In other words, you may be asking, “how will a criminal conviction keep me from having the future I want for myself and my family?”
How the word was coined
Let me start by saying that, for years, the law provided that attorneys need to advise their clients only about what judges called the “direct” consequences of a conviction. People who had taken what their lawyers told them was, “a good plea deal” started coming back to the judges and their lawyers and saying, “Hey, you told me it was a good deal, but you forgot to tell me I would lose my job because of this plea.” Or, “you forgot to tell me I’d lose my student loan,” “you forgot to tell me I’d get deported,” “you forgot to tell me I’d get kicked out of my apartment,” “you forgot to tell me I wouldn’t get custody of my kids,” “you forgot to tell me I couldn’t be a soccer coach anymore.” The list went on.
Some people eventually went back to court and argued to the judge that they should be completely let out of the plea deal they took because they weren’t told by their own lawyer vital information about the consequences that were destroying them.
But the judges, at first, were dubious, and said “No, “lawyers only have to tell their clients about the ‘direct’ consequences of the plea”—and they listed them—jail, fines, probation, etc. All the rest, the judges said were merely “collateral” consequences. That is how the term got coined. Judges made it up. And they called it a “doctrine.”
And judges then applied this “doctrine” over and over to say “No” even in many cases where the direct consequences were far outweighed by hidden but very real so-called “collateral” consequences, like losing your job, your life in the United States, your home, custody of your children.
Well, lawyers like me began to recognize that these so-called “collateral” consequences, were anything but “collateral”—too many times they were most important thing in the whole case. And clients started calling us to help them. So we started studying, compiling all the “collateral consequences” we could find, in Arizona especially, and in the world of federal law and regulations. And it amazed us.
What we found
Who would have ever thought, for example, that there’s a special law in Arizona that says if you’re convicted of even the lowest level misdemeanor DUI there’s a presumption that if you are going through a divorce, you shouldn’t have custody of your own children?
And when I first started teaching other lawyers about this, and I asked a group of experienced lawyers, how many of them knew about the law, only one raised her hand. And this was a State Bar a formal seminar about DUI law, and the audience included judges and many experienced DUI lawyers.
After that, we started not only collecting but organizing material, making up charts for lawyers and judges, which I include here, so they, busy professionals, could quickly look at the most common crimes and get an idea how it would affect their clients or the people coming before them.
We found that other people in the United States had been doing the same thing, primarily immigration lawyers. As some of you may know, immigration consequences for minor infractions are sometimes so draconian and unexpected that the United States Supreme Court finally stepped in, but only recently. And since I had practiced immigration law, and previously had lectured on immigration consequences, it was a good fit. But I wanted to expand this knowledge far beyond immigration, to the many many working people who were affected. It was work we were doing anyway: advising our own clients.
In Arizona, a conviction for any misdemeanor drug offense or any DUI within twelve months of a custody dispute creates a presumption that the convicted parent should not have sole or even joint custody of their own child. Any evidence of domestic violence, including common misdemeanors, works automatically against the parent seeking custody and can affect visitation.
Doctors and nurses, but also veterinary technicians, pharmacy staff and many others, are “Licensed Health Care Professionals” under Arizona law. Each has a statutory duty to report a ticket for just about anything to their licensing board immediately, and failing to do so is a separate violation.
Teachers can be seriously affected by criminal charges, even misdemeanors that never result in a conviction. There are measures that can mitigate the effect of an arrest on a teacher’s ability to keep working, which is why early advice from an attorney who understands these consequences matters.
Named one of the Best Lawyers in the United States for Immigration Law, Michael has appeared before the Federal District Court, the Ninth Circuit and the Immigration Courts. Even misdemeanor proceedings can cost a non-citizen a green card, re-entry to the United States, or trigger removal.
Teachers hold them, but so do school janitors, bus drivers, kindergarten volunteers, little league coaches and childcare workers. A criminal charge can cost the card, and with it the job. See also the common crimes that lead to loss of a card and the note for teachers.
Border Patrol Agents, civilian and military staff at Davis-Monthan, the thousands at Raytheon and Fort Huachuca: Southern Arizona is full of clearance holders. Misdemeanor charges can cost a clearance, bar a future federal career, or exclude a young person from the military and its most coveted tracks.
Domestic violence charges and convictions carry surprisingly profound consequences for anyone who possesses firearms, whether as a matter of professional necessity or personal preference, and much of the trouble begins before you are ever convicted.
A person can become a “prohibited possessor” under federal law, knowingly or not, without any felony and in some cases without any criminal charge at all. For law enforcement officers, military members and other professionals who carry for a living, that can mean losing the job right away.
Under Arizona’s “crime free addendum,” a landlord who discovers illegal drug use anywhere on the grounds, even inside your own apartment, can evict you immediately. Withholding a past record on a lease application carries the same risk.
Under the Drug-Free Student Loan Act, even a misdemeanor marijuana possession conviction can affect a student’s eligibility for federal grants and loans. Recent changes have softened the rule, but the loss of aid remains an unwelcome surprise for students and their parents.
Transportation workers with a criminal conviction can apply to TSA for a waiver or appeal. Reviewing the trends in past decisions gives an applicant or cardholder a realistic idea of the likelihood that a TWIC appeal or waiver will be approved.
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