Can DUI Debt be discharged in Bankruptcy?

Cass County, Missouri criminal defense attorneys will find the following Memorandum beneficial should similar issues arise in their criminal defense practice.  This Memo is posted with permission of the participants for that purpose.  The names of the parties have been changed for privacy purposes.

Belton auto accident attorneys and victims should contact our Cass County personal injury attorneys at our Pleasant Hill law firm (816) 540-4040 with specific questions regarding their case as different answers will result with different case facts.

Our Cass County criminal defense attorneys should be contacted for anyone with a case in Belton Municipal Court of Cass County Circuit Court as the law regarding their case may differ.

Memo

To: Mark Holrom

From: Matt Hamilton, Belton criminal defense attorney discussing Cass County Circuit Court matters

Subject: Belton Price Chopper et al. v. Mitchell — viability of having the debts rendered non-dischargeable because of Ms. Mitchell’s driving while intoxicated (DWI) condition during the Belton auto accident that caused personal injury.

Date: July 29, 2008

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Issue:

1.     Can Ms. Mitchell’s debts be rendered non-dischargeable because she operated her automobile driving while intoxicated, with a B.A.C. in Belton measured at .088, one and one-half hours after the Belton auto accident?

2.     Can Belton Price Chopper’s property damage claim be included as non-dischargeable because Ms. Mitchell was driving while intoxicated (DWI) – alcohol?

3.     Are we required to specifically plead which section of § 523 we wish to have Ms. Mitchell’s debt rendered non-dischargeable under?

4.     Are other exceptions to discharge available besides the “driving under the influence” (DUI) in Cass County, MO exception?

Conclusion:

1.     Yes, § 523 of the code renders debts non-dischargeable if incurred as the result of driving under the influence (DUI) of alcohol under Missouri law and the bankruptcy court can determine Ms. Mitchell as having driven under the influence (DUI) in Belton, Cass County under Missouri law.

2.     No, property damage claims are not allowed under § 523 (a)(9); however, property damage claims are non-dischargeable under other portions of § 523.

3.     Yes, the Bankruptcy Code requires that a litigant 1) plead which section of § 523 that the debt is non-dischargeable under and 2) the material facts supporting the claim.

4.     Yes, the defendant can argue that Ms. Mitchell’s actions were willful and malicious conduct under § 523 (a)(6) even though success under this section is highly improbable.

Analysis:

I. It is likely that the plaintiff will be able to render Ms. Mitchell’s debt for the damages to Mr. and Mrs. Dixon non-dischargeable under § 523 of the Bankruptcy Code. The Bankruptcy Code does not discharge debts that are incurred as a result of driving under the influence of alcohol. Driving under the influence of alcohol is determined by the law of the state in which the debt was incurred. Ms. Mitchell’s debt to the plaintiff’s arose in Belton, Cass County Missouri and Ms. Mitchell can be found guilty under Missouri state law in Cass County Circuit Court at Harrisonville. Further, it is not necessary for the Debtor to actually have been found guilty by Missouri. The bankruptcy court will apply state law to make an independent determination regarding whether the Debtor was driving under the influence (DUI) in Belton irrespective of what the Circuit Court of Cass County, Missouri at Harrisonville determines.

Discharge for driving while intoxicated (DWI) is determined by Title 11 U.S.C. § 523 (a)(9) of the Bankruptcy Code. It provides in pertinent part that “a discharge under § 727 of the bankruptcy code does not discharge an individual debtor from any debt … (9) for death or personal injury caused by the debtor’s operation of a motor vehicle if such operation was unlawful because the debtor was driving while intoxicated from using alcohol, a drug, or another substance.” Id.

Driving while intoxicated in Belton or Cass County for purposes of § 523 is determined by looking to the law of the state where the event occurred. Commercial Union Insurance Company v. Christiansen (In re Christiansen), 80 B.R. 481, 482 (Bankr. W.D. Mo. 1987). Bankruptcy courts establish driving while intoxicated (DWI) by a preponderance of the evidence standard. Willison v. Race, 198 B.R. 740, 762 (Bankr. W.D. Mo. 1996); Simpson v. Phalen, 145 B.R. 551, 554 (Bankr. N.D. Oh. 1992). Missouri law states that “a person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an intoxicated (driving while intoxicated – DWI) or drugged condition.” RSMo § 577.010.1 (1986). “[A] person is in an ‘intoxicated condition’ in Belton when he is driving under the influence (DUI) [sic][of] alcohol, a controlled substance, or drug, or any combination thereof.” RSMo § 577.001.2 (1986).

Driving under the influence (DUI) in Belton or Cass County can be shown in two ways. First, it can be established through scientific tests, such as the Intoxilyzer 5000, that measure the amount of alcohol in the blood. Second, driving under the influence (DUI) in Belton or Cass County can be established through circumstantial evidence, such as physical observations of witnesses. If an Intoxilyzer test does not conclusively establish alcohol content over the necessary eight hundredths of one percent, the second method can be employed. Specifically, Missouri law as applied in Cass County Circuit Court states that:

[a]ny charge alleging a violation of Section 577.010 … shall be dismissed with prejudice if a chemical analysis … demonstrate[s] that there was less than eight-hundredths of one percent of alcohol in the defendant’s blood unless…

(2) There is evidence that the defendant was driving under the influence of a controlled substance, or drug, or a combination of either or both with or without alcohol; or

(3) There is substantial evidence of driving while intoxicated from physical observations of witnesses or admission of the defendant.

Section 577.037.5, RSMo (1986).

Thus, a test showing a blood alcohol content over .08 is not indispensable to a conviction of driving while intoxicated (DWI) in Belton Municipal Court or the Circuit Court of Cass County at Harrisonville, Missouri.

Missouri courts such as the Circuit Court of Cass County have established the level that a person must be driving under the influence (DUI) by alcohol to sustain a conviction under Missouri law either in Belton Municipal Court or Cass County Circuit Court. Belton criminal defense attorneys and Cass County criminal defense lawyers apply this standard.  This is also applied in the same manner by Lee’s Summit criminal defense attorneys.  On several occasions, the Missouri Supreme Court has summarized the necessary evidence to establish driving under the influence. The Court states that:

Any intoxication that in any manner impairs the ability of a person to operate an automobile is sufficient to sustain a conviction…. A jury would readily understand that what is meant by an ‘intoxicated condition’ in connection with a charge of this nature is drunkenness to such an extent that it interferes with the proper operation of an automobile by the defendant.

State v. Raines, 62 S.W.2d 727, 729 (Mo. 1933)(emphasis added); accord State v. Cox, 478 S.W.2d 339, 341-42 (Mo. 1972).

Thus, a person can be convicted of driving under the influence (DUI) in Belton Municipal Court or Cass County Circuit Court when their alcohol consumption interferes with the proper operation of their vehicle as determined by the trier of fact.

Tests showing alcohol in a defendant’s blood can be combined with testimony of impaired abilities by intoxicants. Evidence that a person had intoxicants in their system coupled with eye witness testimony that the person was affected by an intoxicant has established convictions for driving while intoxicated (DWI) in Belton Municipal Court or Cass County Circuit Court. State v. Falcone, 918 S.W.2d 288, 292 (Mo.App. 1996). Also, convictions for driving while intoxicated (DWI) have been affirmed where defendants have measurable amounts of alcohol in their system and police officer’s observe the defendant affected by the use of alcohol. State v. Meanor, 863 S.W.2d 884, 891 (Mo. 1993). Thus, the presence of alcohol in the blood coupled with testimony of intoxication by a witness is sufficient to convict one of driving under the influence (DUI) in Belton Municipal Court or Cass County Circuit Court under Missouri law.

Once driving under the influence (DUI) is established by the Belton Municipal Court Judge or the Cass County Circuit Court Judge, an additional element is required to have the debt rendered non-dischargeable. In 1987, the Bankruptcy Court for the Western District of Missouri stated that courts must also determine whether the debtor’s intoxication was a causal factor in the accident to determine non-dischargeability under § 523 (a)(9). Christianson, 80 B.R. at 484. Thus, a connection between the accident and the Debtor’s intoxicated condition is required to establish a debts nondischargeability.¹

It is likely that applying the foregoing analysis in the instant case would render the debts in this adversary action nondischargeable. First, Belton police records and Belton police testimony establish that Ms. Mitchell had a moderate odor of alcohol about her, had watery, glassy, bloodshot eyes, failed to simultaneously keep her eyes closed and touch the tip of her nose just after the Belton auto accident, and admitted that she had consumed “cough syrup” before the Belton automobile accident. (See Alcohol Influence Report). This case can be analogized to Meanor where the defendant smelled of alcohol, displayed slurred speech, was impaired according to police testimony, tested a B.A.C. of .02 but was nevertheless convicted of driving while intoxicated (DWI). Meanor, 863 S.W.2d at 887. This evidence can also be analogized to Falcone, where the defendant failed some but not all field sobriety tests, admitted to taking Lorazepam,² did not test for alcohol in her system, but was nevertheless convicted for driving while intoxicated (DWI). Falcone, 918 S.W.2d at 293; See also State v. Friend, 943 S.W.2d 800, 802 (Mo.App. W.D. 1997)(convicting for driving under the influence (DUI) of methamphetamine by showing signs of impaired abilities but not testing for alcohol consumption). Thus, the evidence of impairment in this case is similar to evidence of impairment in other cases where defendants have been convicted of driving while intoxicated (DWI).³

The eye-witness evidence of impairment is supported by the blood alcohol content of Ms. Mitchell’s blood. One and one-half hours after the Belton automobile accident, Ms. Mitchell tested a B.A.C. of .088. (See Alcohol Influence Report). First, it must be remembered that the test was unreliable in measuring Ms. Mitchell’s B.A.C. at the time of the accident due to the lapse of time. See RSMo § 577.037.5 (1)(considering tests as unreliable when taken after an excessive amount of time has elapsed).⁴ Despite this deficit, the evidence will support intoxication for non-dischargeability reasons. In Meanor, the defendant’s B.A.C. of .02⁵ was combined with the evidence of impairment to sustain the conviction of driving while intoxicated (DWI). Meanor, 863 S.W.2d at 887. Here, too, evidence of Ms. Mitchell’s B.A.C. of .088 can be combined with evidence of her impairment to convince the Bankruptcy Court that she was driving while intoxicated in Belton. Thus, Ms. Mitchell’s B.A.C. will support the argument that she was driving while intoxicated in Cass County, Missouri.

Finally, it can be established that Ms. Mitchell’s driving under the influence (DUI) in Belton was a causal factor in the Cass County personal injury auto accident. There is testimony available from the police that the two reasons the Belton auto accident occurred where because of driving “too fast” and “drinking.” (See Missouri Uniform Accident Report at 3). This testimony can satisfy the requirement that the driving while intoxicated was a causal factor in the Cass County auto accident.

In conclusion, it is likely that the personal injury auto accident damages arising from the bodily injuries of Mr. Dixon will be non-dischargeable under § 523(a)(9). Evidence of Ms. Mitchell’s impaired condition combined with the evidence of alcohol in her system can establish “intoxication” under Missouri law. Also, the Belton Police Department auto accident report can establish that a causal factor in the automobile accident was Ms. Mitchell’s driving while intoxicated (DWI). Thus, the bankruptcy Court can conclude that Ms. Mitchell was driving while intoxicated in Belton under Missouri law and her debts arising from that condition are non-dischargeable under § 523.

II. It is unlikely that the Dixons or Belton Price Chopper will be able to recover property damages from Ms. Mitchell because the drunk driving exception to discharge under Chapter 7 only renders damages from personal injury or wrongful death non-dischargeable. The driving while intoxicated (DWI) exception to discharge states that “a discharge under § 727 of the bankruptcy code does not discharge an individual debtor from any debt … (9) for death or personal injury caused by the debtor’s operation of a motor vehicle if such operation was unlawful because the debtor was driving while intoxicated from using alcohol, a drug, or another substance.” 11 U.S.C. § 523 (a)(9)(emphasis added). No mention is made of punitive damages or property damages in this section of the Code. Id. Cases in the Western District of Missouri have held that property damages and punitive damages are non-recoverable under § 523 (a)(9). In re Higgins, 161 B.R. 993, 996 (Bankr. W.D. Mo. 1993). There is no apparent case law allowing property or punitive damages under the driving under the influence (DUI) exception to discharge. Further, corporations with damages, such as Belton Price Chopper, have added troubles under § 523 (a)(9). This is because “only individuals can bring a cause of action for personal injury [under § 523(a)(9)].” Id. Thus, damages from personal injury and wrongful death are unavailable under the driving while intoxicated (DWI) exception to discharge under Chapter 7.

Note that punitive and property damages are available for other non-dischargeable debts. For example, property damages are available for fraud under § 523(a)(2), defalcation in a fiduciary capacity under § 523(a)(4), and willful and malicious injury under § 523 (a)(6).⁶ 11 U.S.C. § 523.

III. Bankruptcy law dictates that a litigant plead the specific section of § 523 and the underlying facts supporting the cause of action that is the objection to the dischargeability of the debt. However, complaints under § 523 (a)(9) are not required to be plead with particulary. The Bankruptcy Code applies Rule 12 of the Federal Rules of Civil Procedure.” FED. R. BANKR. P. 7010. Rule 12 states that “[i]f a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. FED. R. CIV. P. 12. If a more definite statement is required, it is within the sound discretion of the Bankruptcy Court to allow the plaintiff to amend the pleading. In re Universal Foundry Co., 163 B.R. 528, affirmed 30 F.3d 137 (Bankr. E.D. Wis. 1993). Despite the requirements to include information in pleadings, this information does not include specific evidence. Only fraud claims need to be pled with particularity. See, e.g., In re Volpert, 175 B.R. 247 (Bankr. N.D. Ill. 1994). Thus, complaints to object to the dischargeability of debts must be specific enough to allow the opposing party to reasonably respond but need not be plead in particularity.

A complaint to determine a debt’s discharge is sufficiently specific when it specifically alleges actions that warrant denial of discharge and the resulting injury to the creditor. In re Kelpe, 98 B.R. 479 (Bankr. W.D. Mo. 1989). Conversely, complaints objecting to the discharge of debts are insufficiently particular if they fail to identify either the specific subsection of § 523 or underlying facts supporting such grounds. In re Smith, 82 B.R. 113 (Bankr. D. Ark. 1988). Further, tracking the statutory language but failing to state the material facts supporting the claim for discharge amounts to a failure to state a claim for discharge. In re Burrow, 131 B.R. 113 (Bankr. E.D. Ark. 1991). Thus, complaints objecting to the discharge of debts must both state the specific sections of § 523 and allege the material facts supporting the claim.

Note that it is unlikely that a substantial advantage will accrue if an ambiguous complaint is submitted. The Debtor has already sent correspondence to this firm regarding the applicability of § 523 (a)(9) to this action. See Belton Price Chopper v. Mitchell Correspondence file. In addition, Amy Short questioned the debtor regarding the Debtors driving while intoxicated (DWI) during the Belton auto accident at the initial meeting of the creditors on May 18^th. See Letter from Amy Short to Roger Ang of Federal Ins. Co. (May 22, 2008). Consequently, any element of surprise is absent. Further, it is unlikely that other sections of § 523 can be used to render Ms. Mitchell’s debt non-dischargeable under § 523. See infra issue IV. At 9 (exploring the viability of driving under the influence (DUI) in Belton Cass County, Missouri as willful and malicious conduct under § 523). Finally, a risk is present that an ambiguous complaint will annoy the bankruptcy judge. Thus, it is unlikely that a substantial advantage will be gained if the Complaint to Object to the Dischargeability of the Debt does not state what portion of § 523 is to be applied.

IV. It can be argued that Ms. Mitchell’s actions were willful and malicious when she chose to engage in driving while intoxicated in Belton before traveling to work and traveled too fast on icy roads. However, it is highly improbable that this argument will elicit success. Section 6 of 11 U.S.C. § 523 states that bankruptcy does “not discharge an individual debtor from any debt… (6) for willful and malicious injury by the debtor to another entity or to the property of another entity….” 11 U.S.C. § 523 (a)(6). Before the driving while intoxicated (DWI) exception was added to the Code, driving under the influence (DUI) cases were successfully objected to as willful and malicious actions. See, e.g., In re Callaway, 41 B.R. 341, 346 (E.D. Pa. 1984)(stating that the voluntary acts of drinking and then driving while intoxicated are sufficiently intentional and deliberate to render drunk-driving liability non-dischargeable).⁷ Thus, the willful and malicious conduct exception to discharge has been used in driving under the influence (DUI) criminal defense cases.

It can be proposed that this logic should be revived and applied to the instant case. The argument progresses as follows. First, Ms. Mitchell admits to willfully consuming intoxicants on the morning of the Belton auto accident in Cass County, Missouri. (See Missouri Uniform Accident Report at 3). Second, Ms. Mitchell displayed malicious conduct when she purposefully drove on icy roads knowing that she had consumed a substantial amount of intoxicants. Id. Further, Ms. Mitchell knowingly drove the motor vehicle at excessive speeds for the conditions of the road at that time. Id. Thus, it can be argued that Ms. Mitchell acted willfully and maliciously pursuant to the collision on January 25, 2006.

It is highly improbable that this argument will be successful. First, prior to the enactment of the driving under the influence (DUI) exception to discharge, the Western District of Missouri did not recognize driving while intoxicated (DWI) as willful and malicious conduct. See In re Bellmer, Civil Action No. 79-6042-CV-SJ (Bankr. W.D. Mo. 1980)(explicitly rejecting that reckless disregard of the rights of another, without more, can suffice as proof of willfulness or malice in a drunk driving case). Second, the enactment of the drunk driving exception supercedes the line of cases that find driving while intoxicated (DWI) as willful and malicious. 11 U.S.C. § 523 (a)(9). Thus, it is inconsistent to argue that Congress intended drunk-driving to both be explicitly non-dischargeable in § 523 (a)(9) and implicitly non-dischargeable in § 523(a)(6). Third, the Western District of Missouri and the Eighth Circuit have explicitly rejected the argument that drunk driving, in itself, is willful and malicious conduct. Cassidy v. Minihan, 794 F.2d 340, 343 (8^th Cir. 1986). Thus, there is a substantial body of applicable law rejecting the argument that Ms. Mitchell’s drunk driving was non-dischargeable under the willful and malicious exception to 11 U.S.C. § 523.

In summary, a good faith argument is available to reverse the law of the eighth circuit and include driving under the influence (DUI) in Belton, Cass County, Missouri as willful and malicious conduct. However, this reversal is unlikely because of the precedent established and followed in this circuit. A Cass County criminal defense attorney or a Belton auto accident lawyer advocating this argument faces opposing arguments that it is against the will of Congress, contrary to the clear statutory language of § 523, contrary to the case law in the district and circuit courts, and has never been adopted by this district at any date. Thus, it is highly improbable that Ms. Mitchell’s driving under the influence in Belton, Cass County can be successfully placed under the willful and malicious conduct exception to discharge.

Note that other sections of § 523 appear equally inapplicable to the facts in the instant case. Debts in bankruptcy are non-dischargeable when they are taxes, obtained by false pretenses, fraud in a fiduciary capacity, larceny, child or spousal support, through a fine or penalty or forfeiture to a governmental unit, or educational loans. They are also non-dischargeable when waived by the debtor or made through commitments to federal depository institutions. With the exception of driving while intoxicated under § 523, no other portions of 11 U.S.C. § 523 seem applicable to this case.

1Note that a substantial body of bankruptcy courts presume that the intoxication was a causal factor in the incident and do not require a litigant to independently prove it. However, the Bankruptcy Court for the Western District of Missouri has already considered this fact and determined that a litigant must independently establish the causal connection. Christiansen, 80 B.R. at 484, n. 3.

2A sedative drug.

3Indicators of intoxication have been held sufficient to supports verdicts of “intoxication” in a number of cases where field sobriety tests could not be performed. State v. Burris, 729 S.W.2d 661, 663 (Mo.App. S.D. 1987); State v. Jackson, 643 S.W.2d 74 (Mo.App. 1982); State v. Powell, 618 S.W.2d 47 (Mo.App. 1981); State v. Laws, 547 S.W.2d 162 (Mo.App. 1977).

4Note that expert testimony could be included to create an inference that a blood alcohol content of .088 one and one-half hours after an incident was really over the legal limit of .08 at the time of the Belton auto accident.

5Mr. Meanor’s blood sample was unreliable regarding his B.A.C. at the time of the accident because he sustained injuries at that time and could not be tested. His blood sample was taken “later that morning” at the hospital. Meanor, 863 S.W.2d at 887.

6None of these section of the Code appear applicable to the present case absent other information, such as some willful or fraudulent conduct by Ms. Mitchell. See issue IV. at 9 (examining the application of the willful and malicious conduct exception to the facts in this case).

7For other case citations, look to Cassidy v. Minihan, 794 F.2d 340, 343 (8^th Cir. 1986).