Just recently, the lawyers at Brett O’Brien Law, LLC filed a TWIC waiver application on behalf of a client convicted of conspiracy to distribute controlled dangerous substance (CDS) in federal court. Our client contacted us after he received a Preliminary Determination of Ineligibility with respect to his application for a Transportation Worker Identification Credential (TWIC) as a result of the felony conviction.
The client entered a plea of guilty to the felony offense in October of 2010. He was subsequently sentenced to serve a probationary term of five years and was ordered to submit to drug testing in addition to paying a fine. Just recently, the client was successfully discharged from probation in May of 2017.
Pursuant to 49 C.F.R. § 1572.103(b)(2)(vii), convictions for distribution of, possession with intent to distribute, or importation of a controlled substance constitute interim disqualifying criminal offenses. In addition, pursuant to 49 C.F.R. § 1572.103(b)(2)(xv), a conviction for conspiracy or attempt to commit any of those crimes would also constitute a interim disqualifying criminal offense. Thus, our client’s conviction for conspiracy to distribute oxycodone in violation of 21 U.S.C. § 846 would in fact constitute an “interim disqualifying criminal offense” pursuant to 49 C.F.R. § 1572.103(b)(2).
According to 49 C.F.R. § 1572.103(b)(1), however, an interim disqualifying criminal offense is only disqualifying if either:
(i) the applicant was convicted, or found not guilty by reason of insanity, of the crime in a civilian or military jurisdiction, within seven years of the date of the application; or
(ii) the applicant was incarcerated for that crime and released from incarceration within five years of the date of the TWIC application.
[49 C.F.R. § 1572.103(b)(1).]
Thus, in our TWIC waiver application we pointed out that the applicant was not sentenced to serve any period of incarceration and, instead, was sentenced only to a five-year probationary period. Thus, subsection (ii) of 49 C.F.R. § 1572.103(b)(1) is inapplicable.
Moreover, we further pointed out that, according to subsection (i) of 49 C.F.R. § 1572.103(b)(1), our client’s conviction for conspiracy to distribute oxycodone would only be disqualifying if his conviction is less than seven years old. Here, the client’s s conviction was entered in October of 2010. Thus, in October of this year — which was less than three months away — the client’s conviction would no longer be disqualifying. We therefore asked that the TSA take this into consideration in determining whether or not to grant his TWIC waiver application.
In addition, we provided substantial evidence to support the fact that our client has been rehabilitated and did not pose a security threat, as provided in the five waiver criteria of 49 C.F.R. § 1515.7. According to that section, in determining whether to grant a waiver, TSA will consider the following factors, as applicable:
(i) The circumstances of the disqualifying act or offense.
(ii) Restitution made by the applicant.
(iii) Any Federal or State mitigation remedies.
(iv) Court records or official medical release documents indicating that the applicant no longer lacks mental capacity.
(v) Other factors that indicate the applicant does not pose a security threat warranting denial of the HME or TWIC.
[49 C.F.R. § 1515.7.]
In addition to explaining how our client demonstrated his rehabilitation under each of these five criteria, we also supplied TSA with a significant amount of documentary evidence to support our claim as well. In addition, we also took the opportunity to explain that our client’s job depending on his ability to obtain a TWIC and that he would lose his current position if he were unable to obtain his TWIC.
Once we hear back from TSA regarding its determination in this matter we will post an update.
Experienced TWIC Waiver Application Lawyers
If you need to file a TWIC waiver application, contact the experienced TWIC waiver lawyers at Brett O’Brien Law, LLC today for a free consultation. We will review your TWIC denial free of charge and thereafter advise you as to how we can help you obtain your TWIC.