• Khabibulin Trial

    by  • May 20, 2010 • Uncategorized • 9 Comments

    Joanne Ireland from the Edmonton Journal reported this a few weeks back:

    Edmonton Oilers goaltender Nikolai Khabibulin is scheduled to appear before a jury in Scottsdale, Ariz., on July 7 to answer charges of driving under the influence.

    Among the charges is the more severe extreme DUI, which was added when the results of his blood test revealed his blood alcohol content measured .164 per cent. In Phoenix, a reading of .15 or higher automatically elevates a DUI to extreme.

    If Khabibhulin is found guilty, a first-time extreme DUI conviction carries a minimum 30-day jail sentence, montetary fines, as well as the addition of an ignition interlock device, which is breath-test machine that is wired into the ignition. The car will not start until the breath sample is free of alcohol. The maximum jail sentence is six months.

    Khabibulin has an evidentiary hearing on June 21.

    While I’m not versed in the intricacies of Arizona criminal procedure (or Canadian criminal procedure, for that matter), if I had to venture a guess, I’d guess that Khabibulin is challenging the admissibility of some or all of the evidence against him, something that seems to be confirmed by this link. Impaired driving law is notoriously technical, in Canada at least, probably in part because it’s the rare area of criminal law that frequently has wealthy defendants who can afford highly skilled lawyers to put the prosecution to proving its burden. It’s also, generally speaking, a more technical offence than something like assault, where you either hit the guy or you didn’t. Presumably, Khabibulin’s criminal defence lawyer thinks he has some argument to get some of the evidence ruled inadmissible. Where he was barely into the extreme DUI level, the science behind the reading of .164 becomes important.

    The really interesting thing though, is the possibility that he’s found guilty. Aside from the criminal punishment, he is then inadmissible to Canada. There’s a procedure by which he can get what’s known as a temporary resident permit but it looks to be pretty involved. While I’m not 100% certain, it seems implicit to me that you have to have completed your sentence before you can apply for it – if he’s convicted on July 7, the earliest he would have completed his sentence is August 7.

    Guys in their twenties being what they are, I figured that this must have happened before. Sure enough, I’ve come up with some news reports of non-Canadian players getting convicted of offences in America that would seem likely to me to render them criminally inadmissible to Canada. In March of 2003, Alexei Zhamnov was charged with a DUI. He pleaded guilty in April and got what we’d refer to here as a conditional discharge – keep your nose clean and you don’t get a record. In December of 2003, Donald Brashear was charged with DUI. He made his plea bargain in April and was convicted for failure to blow, a criminal offence in Canada.

    The fact that both deal were done in April caught my eye. That is, of course, the furthest possible point from the next hockey season. If you’re faced with having to leap through bureaucratic hurdles, you want to have as much time as possible to deal with them. My brother-in-law – no criminal record – has been through the Canadian immigration system and it did not strike me as a particularly fast moving process. It might just be a coincidence – it’s hard to say. Sandis Ozolinsh, who apparently had some serious issues with alcohol although the most recent media reports indicated that they were under control, once got three DUI’s in a month but never seemed to have any trouble getting in and out of Canada.

    A memo turned up today on Biz of Baseball that was sent by the MLBPA ot its membership. It reads, in part:

    Recently, Canadian authorities have stepped up enforcement of these laws, resulting in several non-Canadian players traveling to Toronto with their teams being detained at the border because of a past criminal record. Even an arrest, conviction or suspended sentence many years ago for a minor crime, or a juvenile offense, can result in a border detention and investigation to determine whether a player can be permitted to enter Canada , if the appropriate entry permit has not been obtained in advance.

    Canadian authorities have provided a specific contact at the Canadian Office of Foreign Affairs who can assist any Major League player with questions about the need for and assistance in obtaining any required permit before any trip to Canada.

    My sense is that this has been ramped up recently. I suspect that he would ultimately be let into the country; DUI’s aren’t exactly unknown to pro athletes but that the steps to get in might be more involved than they once were. I emailed his agent and asked him about this potential problem – we’ve had exchanges before – and didn’t get a response.

    The timing of the whole thing creates some real problems for the Oilers, if there’s a risk that Khabibulin won’t be permitted entry into the country until some point after the season begins, if at all. If you’re looking for a tell on whether the Oilers perceive such a risk exists (which may or may not mean anything; they aren’t an organization known for their risk management skill), you might look to see what they do with their goaltending in June. Steve Tambellini has indicated that they don’t want to run three goalies next year, which was taken to mean that a decision as to whether JDD or DD should be let go was coming. They have to qualify these fellows by July 1. If they don’t move one of them before the draft and qualify them both, I’d guess that they’re at least somewhat worried about what’s going to happen.

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    9 Responses to Khabibulin Trial

    1. P-Ow
      May 21, 2010 at

      The heightened security is clearly a ploy to help the Jays keep winning into June this year after their epic collapse last year.

    2. OilW30
      May 21, 2010 at

      This whole thing strikes me as one of those situations that you’d think would be a big deal, but then never amounts to one. DUI evidence is notoriously shaky–did he blow the .164 on the road or in the station, etc.?

      You rarely hear about athletes (or even musicians, for that matter–a much worse group) being denied entry. Sometimes, but rarely.

      It’ll be interesting to watch how it plays out, but I doubt anything will become of it.

      Is it wrong to hope that they throw the book at him so that we can get out of that contract?

    3. marconius E
      May 21, 2010 at

      I’ve followed your blog for a while now, Tyler, and there’s something I’m curious about. I’ve read about your past exchanges with Khabby’s agent and I was wondering if he talks to you out of professional courtesy (you’re a lawyer, I believe) or if all he knows about is that you’re some hard-core Oilers fan?

    4. NewAlgier
      May 21, 2010 at

      They kept Flavor Flav out before a concert, so Chuck D had to step in. So it could happen.

      Seems that if I’m the Oilers, I want Khabbi banned and then I don’t have to pay him, or at least he doesn’t count for cap. There must be standard verbiage yadda yadda in the contract about being able to work and reporting dates and so on.

    5. Tyler Dellow
      May 21, 2010 at

      We had our first exchange on Twitter. He might know now that I’m a lawyer, if he reads the site, but I don’t know that it’s that obvious otherwise.

      OilW30 – I agree, except that this seems to be becoming more of an issue. The MLBPA memo is the really big tip-off that there might be somthing here, I think.

    6. Triumph
      May 21, 2010 at

      i’m pretty sure that khabibulin’s contract would still count on the cap even if he couldn’t legally play for edmonton, because he was signed when he was over 35. vladimir malakhov never showed for training camp and could’ve been suspended for failure to report – but still counted on the cap as a 35+ in 2006.

    7. May 21, 2010 at

      Donald Brashear was … convicted for failure to blow

      They obviously never watched him play hockey.

    8. Lindsay
      May 21, 2010 at

      Bruce wins for witty comment of the day.

    9. OilW30
      May 22, 2010 at

      The memo does add an interesting dimension. It’ll be interesting to see if something becomes of it. I’d like to know how many MLB players have a record of one form or another that might prevent them from entering.

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