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US Navy Lautenberg Amendment Question
October 18, 2011
8:04 pm
Timothy
Guest

Hello, I've been a member of the US Navy since June of 1998.  In January of 2002 I plead no contest to Domestic Battery in order to not miss ships movement.  I had no idea what affect this was going to have on my career and it's haunting me to this day.  

 

The "battery" that took place was simply grabbing my spouse at the time by her arm and leading her out of the front door.  She literally tripped over the door jamb and scraped her hand on the sidewalk.  Because I was seeking a divorce, she called the police and I spent the night in a Duval County jail the next day.  

So with an entirely clean record both before and since this incident, I am labeled as a wife beater and can't perform essential duties to my job.  It's prevented assignments that woul enhance my ability to advance as well as placed undue hardships on other people having to pick up the slack on my watches where I was not allowed to carry a firearm.

 

Im now attempting to qualify for a tour of duty overseas and am afraid that this completely ridiculous implementation of the Lautenberg Amendment is going to rear its ugly head again.  I'm tired of a woman I have not spoken to in over 10 years having this much power over my career.  How can I get this removed from my record?  I was not made aware of the consequences, I was not represented by counsel, and felt completely railroaded into my plea of no contest.  Any advice anyone could provide would be greatly appreciated.

 

October 19, 2011
5:17 am
Mathew Higbee, Esq
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Forum Posts: 323
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April 8, 2010
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There are two exceptions to the federal law.

 

(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless‚ÄĒ
(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

Do you meet either of those?

Founding Attorney - RecordGone.com
October 19, 2011
10:23 am
Timothy
Guest

Thank you for the response.  I'm not sure if those situations apply to me.  Is a plea of no contest the same as a guilty plea?  I may have waived my right to counsel being young and stupid, but I'm fairly sure it wasn't "knowingly and intelligently.".   The only things I knew at the time was a) I had no money to either bail myself out  or hire any representation, and b) it was a Friday or Saturday morning hearing and my ship was scheduled to get underway on Monday. Missing ship's movement, I thought at the time, would be far worse than pleading no contest to a misdemeanor.  Having had no prior experience with being arrested or having to deal with the law, I just did what the people told me to do in order to get back to my job and my normal life.  I was on a small ship at the time with no Jag Officer, just on LN1 (basically a paralegal), and the ship had no other resource or desire to verify that this actually applied to me.  And of course at 22, I was too naive to push the issue and just went along with the situation.

October 30, 2011
2:10 am
Mathew Higbee, Esq
Admin
Forum Posts: 323
Member Since:
April 8, 2010
Offline

There are some novel things about your case that might make a judge (and maybe even the right DA) be sympathetic and open to overturning the conviction.   You might also be able to challenge the application of the law to you under one of the exceptions. 

1.  You may have relied on the the legal advise of a non-attorney because no JAG officer was availalbe.

2.  You made your plea under the duress of missing your ship's departure

3.  No JAG officer was available, you could not afford a private attorney and therefore your you waiver of counsel may have been because you did not think you had an option to obtain counsel.

4.  This is a non-injury incident, the only thing on your record and it is having a major impact on your ability to serve our country.

This is not a case our law firm handles, but you might find an attorney who sees an opportunity to challenge the conviction or application of the Lautenberg Amendment.

Founding Attorney - RecordGone.com
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