nstassel
NES Member
Wrapped up another disqualification recently with another twist. This client had a leaving the scene of an accident and OUI a month after the increase in sentence. He had no record and a defensible case but his lawyer had him plead. The docket said guilty on both offenses but his recollection and his lawyer's was that it was continued without a finding which would likely have been the case. The docket had a couple of inconsistencies. For a final disposition the OUI was marked dismissed and their was no entry for the leaving the scene.
A guilty finding can't be dismissed after probation though only a CWOF can. If a court document has two possible interpretations the court should read it in the manner more in favor of the defendant. That's called the doctrine of lenity. So we filed a motion to correct the docket. We also argued that if it was a guilty he had ineffective assistance of counsel, and the conviction was not knowing and voluntary if it stripped him of second amendment rights.
The last argument has an issue which is that years ago it was found that loss of gun rights was a collateral consequence of a conviction. I've never believed that was still true especially because the Supreme Court ruled that an immigrant has to be warned that an admission to a crime can affect their ability to remain in the US which is not an enumerated right unlike bearing firearms. After Heller this argument was available and had just gotten better since then.
The judge corrected the docket which fixed the disqualification. The twist is that she was very interested in the second amendment issue too. She said that she thought that plea colloquies should include a warning about firearm rights and that she been discussing this recently with another judge. That's a big deal. She didn't need to reach the issue because of the error but asked for my info to discuss the issue later "in chambers".
A guilty finding can't be dismissed after probation though only a CWOF can. If a court document has two possible interpretations the court should read it in the manner more in favor of the defendant. That's called the doctrine of lenity. So we filed a motion to correct the docket. We also argued that if it was a guilty he had ineffective assistance of counsel, and the conviction was not knowing and voluntary if it stripped him of second amendment rights.
The last argument has an issue which is that years ago it was found that loss of gun rights was a collateral consequence of a conviction. I've never believed that was still true especially because the Supreme Court ruled that an immigrant has to be warned that an admission to a crime can affect their ability to remain in the US which is not an enumerated right unlike bearing firearms. After Heller this argument was available and had just gotten better since then.
The judge corrected the docket which fixed the disqualification. The twist is that she was very interested in the second amendment issue too. She said that she thought that plea colloquies should include a warning about firearm rights and that she been discussing this recently with another judge. That's a big deal. She didn't need to reach the issue because of the error but asked for my info to discuss the issue later "in chambers".
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counselor
