Thomas H. Roberts & Associates, P.C.
Virginia's Civil Rights & Personal Injury Law Firm

(804) 783-2000


DUI - Non-dischargeable Debt in Bankruptcy


                                     FOR THE EASTERN DISTRICT OF VIRGINIA

                                                              Richmond Division


In Re: Kenneth Nelson Barnette,                 ]

]           Case No. 90-32290-T

Debtor.            ]           Chapter 7


                               OPPOSITION TO DEBTOR=S MOTION TO REOPEN


Comes now [judgment creditor]and Thomas H. Roberts, Esq., by and through their counsel, Steven Chaplin, Esq. and opposes the motion of the debtor to reopen his case for the purpose of filing a motion for contempt against [judgment creditor] and Thomas H. Roberts, Esq., on the grounds that the motion to reopen and the proposed motion for contempt are without basis in law and in fact. 

                                                                 FACTS & LAW

Kenneth Nelson Barnette, an individual debtor, caused personal injuries to [judgment creditor] by the unlawful operation of a motor vehicle, driving while intoxicated and under the influence of alcohol and cocaine on November 27, 1989.  The debtor admitted to driving while intoxicated.  (Exhibit 1 - Circuit Court Order; Exhibit 2 - Police Officer=s Notes).  Driving or operating a motor vehicle while under the influence of alcoholic beverages or other self-administered intoxicants and/or drugs is unlawful in Virginia.  Va. Code 14.1-1.  11 U.S.C. 523(a)(9) specifically excepts debts arising from intoxicated driving from discharge.


' 523.  Exceptions to discharge.

(a)  A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt--


(9) for death or personal injury caused by the debtor=s operation of motor vehicle if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance....


11 U.S.C. 523(a)(9)


The bankruptcy discharge does not discharge the obligations to the debtor arising from the unlawful operation of the motor vehicle which resulted in personal injuries to [judgment creditor].  No relief from stay is necessary to enforce the obligations against a discharged debtor.

' 523(c)(1)  Except as provided in subsection (a)(3)(B) of this section, the debtor shall be discharged from a debt of a kind specified in paragraph (2), (4), (6), or (15) of subsection (a) of this section, unless, on request of the creditor to whom such debt is owed, and after notice and a hearing, the court determines such debt to be excepted from discharge under paragraph (2), (4), (6), or (15), as the case may be, of subsection (a) of this section.


11 U.S.C. ' 523(c)(1).


Noticeably absent from the foregoing itemized list of exceptions which require a notice and a hearing in bankruptcy court to determine whether or not the debt is excepted is paragraph (9).  On November 15, 1990, the debtor was Areleased from all dischargeable debts@.  (Exhibit 3 - Order of Discharge, emphasis added).  Only judgments obtained in other courts after the discharge with respect to debts dischargeable under 11 U.S.C. ' 523 are null and void.  (Exhibit 3)  By express provision of the order of this court, only creditors whose debts are discharged by the Order of November 15, 1990 were enjoined from commencing, continuing or employing any action, process or act to collect, recover or offset any such debt as a personal liability of the debtor.  (Exhibit 3).

It is well settled that the very purpose for the provisions of 11 U.S.C. ' 523(a)(9) is that of deterring and not rewarding drunk driving in the United States as well as preventing drunk drivers from using bankruptcy procedures as an aegis of sorts to escape the consequences of their crimes.  In Re Hudson, 859 F.2d 1418, 1423 (9th Cir. 1988).  In addition to this, in a case similar to the present case, the defendant debtor, in In Re Thomas, 51 B.R. 187 (B.Ct. E.D.Va. 1985), the Court stated that Congress did not aim to Aimpede an injured party@ when a drunk driver killed a motorist and sought to be discharged from the debt by way of bankruptcy proceedings.  In fact the court conclusively stated that the purpose of 11 U.S.C. ' 523(a)(9) was not that of giving Aquick thinking drunks or their attorneys an out.@ Id.

There is no Awillful violation,@ the debt is excepted from discharge and the case should not be reopened.

WHEREFORE, [judgment creditor] and Thomas H. Roberts, Esq., by and through their counsel, pray that the motion to reopen be denied and that they be awarded costs and attorneys fees incurred to oppose the motion.

[judgment creditor]



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Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, P.C.
Virginia Civil Rights Attorneys
105 S. 1st Street
Richmond, Virginia 23219
804) 783-2000
804) 783-2105