By Britt Ackerman
Any experienced criminal defense attorney knows that a myriad of collateral consequences are triggered by criminal convictions (or even upon arrest), and that the possible sentences under the criminal code often doesn’t come close to the collateral risks triggered by the entry of the conviction. These consequences may be called “sanctions” or “consequences” but regardless of the name, the effect is the same. The collateral effects of a criminal matter can often be much more serious than the sentence handed down in court. Even an arrest which doesn’t result in conviction can trigger collateral consequences. Often there is nothing the judge can do to help your client avoid the collateral effects of the criminal prosecution.
So when advising your client, how do you determine the possible collateral consequences and provide good advice accordingly?
First, check Chapter 609B . This chapter is a start. It’s unlikely that you’ll have a client affected by violating the certified seed potato law, but likely that you’ll come across a client whose driver’s license gets revoked for failing to provide proof of insurance by their first court date.
Most collateral consequences aren’t readily found in Chapter 609B. You’ll have to go digging, which means piecing together the state’s statutes, the administrative rules, and federal law. Understanding your client’s unique situation, including education and employment goals, is imperative to providing accurate and competent advice.
Another good source to check is Chapter 245C, which addresses the background studies conducted by the Department of Health and Human Services. You client may be prevented from working as a home health care aide or even from acting as guardian of elderly parent if they can’t pass this background check. Of course a conviction may result in disqualification. However, just the filing of these types of charges will lead to an administrative process that may result in administrative disqualification. When your client is charged with a serious crime such as criminal sexual conduct, they may ignore (or not even receive) the administrative notice that DHS will send regarding their administrative disqualification. As attorney, you won’t receive notice of the disqualification, because you are counsel of record in the criminal matter only. The agency must only establish your client committed the crime charged by a preponderance of the evidence, and a later acquittal has no effect on the agency’s decision. Therefore you must advise your client as soon as possible of the possibility of DHS action, so that appropriate steps can be taken to protect your client in the administrative venue as well as the criminal court.
A final word of caution–be very cautious about Minnesota’s Sex Offender Registration Laws. Registration as a sex offender, in my opinion, is the most serious collateral consequence at play when dealing with offenses requiring registration. The trap to Minnesota’s law requiring registration is that an offender must register if charged with a crime requiring registration and convicted of that crime or another offense arising out of the same set of circumstances. Here’s an example of how this statute can sneak up on you.
Your client might be charged with indecent exposure for streaking a college football game. No big deal, but it turns out your client has a prior delinquency adjudication for doing the same thing during a high school football game. The prosecutor agrees with you that the indecent exposure charge is too serious for the circumstances, and agrees to reduce the charge to a disorderly conduct with a $100 fine. Sounds like a good resolution, right? Wrong. Upon being convicted of the disorderly conduct charge, which arose out of the same set of circumstances as the original indecent exposure charge, your client will have to register as a sex offender for at least ten years. The judge won’t order registration and it doesn’t matter what the court does. The registration requirement is triggered automatically, because when the original charge is filed the offense code triggers the BCA, and when the conviction to disorderly conduct is entered, the BCA’s registration requirement will automatically trigger.
When a client thinks they’re paying a $100 fine when they walk out of the courtroom, and later discovers their life is effectively over because of the requirement to register, they will be (rightfully) angry that you didn’t advise them of the registration requirement. You may or may not have an ethical obligation to advise your clients of collateral consequences, but you definitely have a moral obligation to do so.