Assessment Period & Conviction Definition

Maritime Topics Maritime Training & Licensing
1

Good afternoon All,

I’ve been searching through the forums, and NMC policies, and am still stuck on how exactly to fill out the conviction form for my upgrade packet.
Currently a 2M Oceans Unlimited with everything ready to submit for my C/M Oceans Unlimited to get my ATT letter. Only issue I have is in regards to the conviction statement.

In Jan 2020 I was arrested for suspicion of DWI. Immediate 6 month suspension of driver’s license, which my lawyer advised not contesting so we could pursue diversion.
Lawyer had me enter into the Florida diversion program, which I completed. As it required a class and monetary contribution, it would be considered a conviction under USCG definition. Upon completion, the DWI charge was dropped, and the three day course advisor signed that I don’t need counseling, alcohol rehab, etc.
The subsequent court hearing was for reckless driving, rather than DWI as per the diversion agreements. They withheld adjudication, which for everyone (other than USCG apparently) isn’t a conviction.
Due to COVID and my sailing schedule, it took forever for them to actually get me a court date/go through all the motions. End of the day it was settled August 24th 2021 with the reckless driving withheld adjudication.

Even if I wait until August to submit everything and it’s past the 1yr assessment period, I’ll still have to fill out the paperwork. At this point, I figure the odds of them revoking my current license are low, and if they deny the application then I can just reapply after the assessment period. I’ve been steadily employed with good evaluations for the past two years since the incident, and if requested could provide letters of suitability.

So my question is this:

Reckless driving and/or DWI is a 1yr assessment period from date of conviction. If the USCG is going to view this as a conviction either way, do I put it down as a DWI or reckless?

Would the date of conviction be the date of withheld adjudication final ruling in August/the assessment period would start from there?

Odds of me getting screwed either way, and best way to minimize the screwage?

I’m waiting to get my NDR copy, because my understanding is that since it was ruled withheld adjudication and I wasn’t convicted, there wouldn’t be an actual “conviction” on my NDR.

Appreciate any insight!

(and yes, I did learn my lesson/admit that everything was my own fault, just trying to see how best to proceed from here).

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The Coast Guard considers deferred adjudication to be a “conviction” as that term is defined in 46 CR 10.107:

If an applicant… is granted deferred adjudication… the Coast Guard will consider the applicant to have received a conviction.

You would be inviting heightened scrutiny and at a minimum delays if you answer that you do not have a conviction based on what appears in the NDR.

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Doesn’t matter what the original charge was, only what the deferred adjudication was for, so if it was for Reckless Driving, put Reckless Driving. The start date of the assessment period should be that 24th of August date when it was entered. Reckless Driving also makes it a non-alcohol related driving offense per the regs so it may save you some grief with the substance abuse follow-up items.

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I wouldn’t worry about it. When you admit you were charged on your application just briefly explain the disposition of the case. The USCG already has you NDR record so no need to go into much of an explanation. If charged you are presumed guilty in the opinion of the USCG, you cannot escape that. There are many masters and CEs who have been charged as you have. It is not a big deal with a first offense. Just be honest.

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Is there any other .gov or private agency that flagrantly ignores the constitution like the USCG? Does the FAA do the same for commercial pilots that have been given deferred adjudication?

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IMHO this isn’t right. There is an enormous amount of pressure (and incentives) for local DAs to get high conviction rates that they will press for settlements even if they know they don’t have the evidence to convict. I’m not necessarily talking about DWI but if you get a ticket for a minor misdemeanor you have the choice between fighting for months (or years) in court (which is next to impossible when you are shipping out) or paying a small fine and booking the conviction.

I even know a guy who they didn’t have enough evidence to arrest. There is no mug shot, no fingerprints on record and no evidence against him but the DA found out his schedule and booked the court date to be when he was at sea to force a plea-bargain. Even after the conviction, they couldn’t book him but the USCG didn’t care about the facts… they only care that he got convicted. How is that fair?

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Correct me if I’m wrong Jim but… Last I checked… the USCG is the ONLY federal entity that serves as all three branches - legislative, executive, and judicial - without checks and balances. They right the regulations (and represent us at the IMO and elsewhere), they enforce the regulations, and they judge the guilty mariner.

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An FAA-licensed commercial pilot would actually have to report within 60 days the license suspension and deferred adjudication within 60 days in accordance with 14 CFR 61.15(c). Congress has not seen it fit to empower the USCG to employ the same mandatory reporting scheme. Otherwise, Saltyseaman1874 would have had a 60-day MMC suspension right off the bat.

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I’ll help with the correction. FAA, FRA, FMCSA, PHMSA, SEC, EPA, SSA, NRC, and virtually every executive branch agency that interacts with stakeholders outside of government do the same thing.

Everything you mistakenly label as “legislative” and “judicial” is Executive function. Congress empowers the executive branch to regulate certain functions of interstate commerce. For example, USCG’s regulatory authority is generally delegated via an annual CG Authorization Act.

Once delegated rulemaking authority, an executive branch agency goes through a notice of proposed rulemaking, a public comment period (perhaps several if rewrites are required) before the proposal is implemented as a final rule. Then they enforce those rules. If you violate one of those regulations, then the CG takes administrative enforcement action against you. Only the judiciary branch can convict you of a violation of law and send you to jail, but an administrative law judge can find you in violation of a regulation and issue a fine or suspend/revoke an agency-issued credential.

DWI is a crime in the State of Florida. It probably has elements that include “was operating a motor vehicle” and “had a blood alcohol level of 0.08 or greater.” Only a judge/jury can convict someone of that offense. But the USCG, who used their congressionally derived authority to create a regulation to license merchant mariners, decided that in the implementation of their regulations, any deferred adjudication or similar action would be assessed during the MMC issuance process.

Finally, with respect to representation at the IMO, international treaty organization representation has always been done at the executive level, mostly via the Department of State. But only the Senate can ratify a treaty. So, if the USCG wants to sign SOLAS, or MARPOL, or STCW, they have to bring it back to the Senate for approval before they can do so.

As the USCG can only do what it is authorized and funded by Congress (Legislative Branch) to do and can be sued in Federal Court (Judicial Branch) for doing it in a manner contradictory to the laws of the US, checks and balances seem to be well in order. And indeed, Congress and the Federal Courts right on up to the Supreme Court seem to agree.

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You are wrong, sort of. The Coast Guard is not litigating or judging the underlying offense. It is being viewed as evidence of suitability to hold a credential. This was not the Coast Guards initiative, it dates to the immediate legislative reaction to Exxon Valdez, and earlier. The original statute charged the Coast Guard with the McCarthy-esque duty of evaluating an applicant’s “character and habits of life.” The post above from the apparent Michigan alumni is pretty accurate, if not dead accurate.

It’s also not unique to the Coast Guard. It is very similar to how such occurrences are viewed in consideration for a security clearance.

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I remember for my original license, probably 20 years ago, I got delayed. I spoke with the CG about this. They said my app package was incomplete until my employer wrote me a letter of recommendation that had to include the phrase that I was “of good and temperant character.” What the heck? My boss of course wrote the letter, but we were dumbfounded by it. Needless to say I had and have never been charged with any substance abuse crimes, so it was a head scratcher.

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I wasn’t speaking of this particular case when I said that the uscg is all three branches wrapped in one. I was talking about marine investigations.

The point was just to illustrate the power that the Coast Guard has over our lives with very few checks and balances built-in.

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Getting back to my original point… is it true that:

  1. many local DAs are under pressure to get high conviction rates
  2. many DAs are under pressure to enter plea bargain agreements rather than go to court
  3. if a mariner was innocent of a crime it would be difficult for him to go through the trial process and maintain his employment at sea

My main point is less about the Coast Guard and more about the local judicial process.

Police are human and like all of us they make small mistakes all the time. They issued tickets and make arrests based on their judgment. Sometimes they are wrong.

I have LEO’s (and lawyers) in the family and it is my experience that of these individuals rarely come right out in court and say I fucked up here, I’m sorry. What they tend to do is allow a plea bargain down to a “slap on the wrist”.

That slept on the rest could be for example a $50 fine and a few hours community service “already served”.

The problem I have is how the NMC interprets that “slap on the wrist” which is technically a conviction (sometime without even an arrest).

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