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TWIC Denial Overturned on Behalf of Client Charged with Weapons Offenses

Just recently, the TWIC denial lawyers at Brett O’Brien Law, LLC represented a client who was issued a Preliminary Determination of Ineligibility with respect to his renewal application for a Transportation Worker Identification Credential (TWIC).  The reason the client was denied the renewal of his TWIC was because the Transportation Security Administration, the organization responsible for handling TWIC applications, indicated that the client has two convictions in the State of Illinois for aggravated assault with a deadly weapon.  

According to the TSA, there are two types of “disqualifying offenses:” (1) permanent disqualifying offenses; and (2) interim disqualifying offenses.  While permanent disqualifying offenses will bar an individual from being eligible to receive a TWIC for life, interim disqualifying convictions will only render an individual ineligible for a 7 year period (during which they may file for a waiver if they wish).  The two categories of interim disqualifying offenses that were applicable in this matter were: (1) assault with the intent to kill; and (2) any firearms or weapons offenses.  

All disqualifying offenses, however, must constitute felony convictions.  In other words, misdemeanor convictions will not disqualify an individual from being eligible to receive a TWIC card.  

After reviewing our client’s TWIC denial, we determined that had grounds to appeal the initial determination. An appeal (as opposed to a waiver) is recommended when you were either not convicted of a disqualifying offense (i.e., the TSA based its preliminary determination on inaccurate or incomplete information) or if you were convicted of a disqualifying offense a long time ago.  

In this case, we gathered various court records relating to the alleged disqualifying criminal offenses and then submitted them to the TSA to show that their initial determination was incorrect because our client’s arrest did not result in any felony convictions.  Instead, it resulted in two Class A misdemeanor convictions under Illinois law.  As mentioned above, misdemeanor convictions do not constitute disqualifying offenses.  

The documents and written arguments that we then submitted to the TSA verified that our client was not convicted of any felony offenses as a result of his arrest.   We also pointed out that our client was never even charged with any felony-level offenses as a result of his arrest.  Rather, the aggravated assault with a deadly weapon offenses that our client was originally charged with pursuant to Chapter 720 paragraph 5/12-2(c)(1) were both Class A misdemeanor offenses.

According to the Criminal Sentencing Orders, our client was found guilty on both counts and was thereafter sentenced to a term of conditional discharge for 12 months and was ordered to pay court fines.  We further pointed out that, pursuant to the Illinois Code of Corrections, a “misdemeanor” means “any offense for which a sentence to a term of imprisonment in other than a penitentiary for less than one year may be imposed.”  730 ILCS 5/5-1-14.  

We also pointed out that, with respect to Class A misdemeanors, a court may not sentence the defendant to more than 364 days in jail or a fine of more than $2,500.00.  730 ILCS 5/5-4.5-55.  In addition to the 364 days in jail and fine, the judge is also authorized to sentence the defendant to a term of Conditional Discharge, as the court did in our client’s case. Under Illinois law, Conditional Discharge does not require reporting to probation and “discharges” the defendant from jail, so long as the defendant meets those conditions listed on the Criminal Sentence Order, including not violating any laws.  Thus, in our client’s case, he was sentenced to payment of only a small fine and 12 months of conditional discharge.  He was not incarcerated nor was he even placed on probation.  

Thus, we asked that the TSA withdraw its initial determination of ineligibility as our client was convicted of two misdemeanor offenses, as opposed to any felonies.  The TSA thereafter responded by issuing our client his TWIC card.  

Experienced TWIC Denial Lawyers

Perhaps surprisingly, the TSA very often bases its preliminary determinations on inaccurate or incomplete information.  In these cases, an appeal will be required.  In other cases, the TSA’s preliminary determination of ineligibility may be based on correct information, but the client may nonetheless be eligible to apply for a waiver of the disqualification.  In some cases, both an appeal and a waiver may be recommended.

About the Author

Brett O'Brien, Esq.
Brett O'Brien, Esq.
author

Brett O’Brien specializes in security clearance appeals. He has dedicated his career to learning the entire security clearance process from start to finish. He started his journey by working for the federal government before entering private practice. Learn more about Brett here.