One of the most important issues for anybody who is receiving or would like to receive student loans while going through a criminal case is whether any type of plea or conviction would result in the loans not being provided or terminated. In my criminal practice, I frequently run into this question, especially with clients who are going to college and receive a drug related misdemeanor or felony charge. The myth that many of those clients believe is that any type of drug conviction will result in the end of student loans, and thus the end of their college experience. However, quite to the contrary, federal student loans are generally available, even in limited circumstances to people who are incarcerated.
Federal Student aid is a vital part of most college bound people’s lives. Without it, many of us would not be able to afford college. In order to receive this aid, one must first fill out a FAFSA (Free Application for Federal Student Aid). As part of this form, question 23 asks whether the applicant has ever been convicted of possession or sale of illegal drugs while receiving student aid. In the event that the applicant has received a conviction, then the FAFSA directs the applicant to send in the application, but indicates that the applicant will be provided with a worksheet, labeled the “Student Aid Eligibility Worksheet for Question 23” which is usually provided with the applicant’s SAR (Student Aid Report). After completing the Question 23 form, the applicant is then instructed to amend their SAR report to reflect their post-conviction status.
The Question 23 form asks the applicant a series of answers that are designed to determine whether the applicant will be eligible for federal student aid. The form highlights the important distinctions which determine who is and is not eligible for aid. The following rules apply to the applicant:
- If the applicant’s drug related conviction took place prior to receiving federal financial aid, then they can receive federal aid.
- If the applicant received a charge that was removed from their record, such as MCL §333.7411, while receiving aid, they are still eligible for federal student loans.
- If the applicant was receiving federal financial aid when receiving the drug conviction but was under 18 years old, they are still eligible for aid, so long as they were not tried as an adult.
- If the applicant received a drug conviction while receiving financial aid, they are still eligible for financial aid if they completed an acceptable drug rehabilitation program, which includes: two unannounced drug tests; and the program be qualified to receive funds from a federal, state, or local government, or state-licensed insurance company, or in the alternative, be administered or recognized by a federal, state, or local government agency or court, or a federally or state-licensed hospital, health clinic, or medical doctor.
20 USC § 1091(r), Suspension of Eligibility for Drug-Related Offenses, a subsection of the Higher Education Act, serves as the legal basis behind FAFSA’s Question 23 and further indicates exactly what ineligibility periods exist for those who wish to receive financial aid. Specifically, the following rules apply for drug convictions:
Possession of a controlled substance: Ineligibility period is:
First offense………… 1 year
Second offense…… 2 years
Third offense……… Indefinite
Sale of a Controlled Substance Ineligibility period is:
First offense………… 2 years
Second offense…… Indefinite
Because of the extreme consequences to student aid the applicant can suffer by receiving a drug conviction, it is my advice that the applicant speak with an attorney who understands these consequences and can formulate a defense strategy that encompasses these issues. Many times, if the court and prosecutor are informed of these issues, alternative plea deals can be reached, as the last thing courts want to do is to prohibit one from going to college. Nevertheless, if you are charged with a drug crime and are receiving financial aid, you must be aware that the decisions you make with your case may have a permanent negative on your ability to get federal financial aid.
Jim Amberg is a partner at the lawfirm of Amberg & Amberg, PLLC. Jim has tried and won misdemeanor, felony, and federal jury trials and routinely handles everything from Major Narcotics Conspiracy to Murder cases. He argued and won the legally significant case of United States v Presley in the 6th Circuit Court of Appeals. Jim also has sued courts to stop the practice of illegally incarcerating minors. Jim is an active member of the Criminal Defense Attorneys of Michigan, the Michigan Association for Justice, and the National Association of Criminal Defense Lawyers. He has been named a Superlawyer by Superlawyer Magazine, a Top Lawyer by DBusiness Magazine, and has a rating of Superb by AVVO.com.
If you have any legal questions regarding your case, please feel free to contact Jim at (248) 681-6255 or email at firstname.lastname@example.org