Most nonimmigrants found guilty of a simple DUI offense will not face negative immigration consequences. However, under given circumstances, DUI may lead to deportation or inadmissibility to the United States. These two consequences can be life-changing since it is not only you that gets affected. For example, if you are deported or rendered inadmissible, and you have a family in the United States, it may be devastating. To add on these two consequences, you also may face the ordinary DUI punishments that include a jail/prison term, fines, DUI programs, etc.
Nonimmigrants who have been arrested for DUI should fight to avoid these consequences. A drunk-driving defense attorney can help you build a strong defense that may lead to a charge reduction or dismissal. Therefore, you should contact an attorney as quickly as you get arrested. At Orange County DUI Defense Lawyer, we handle any DUI-related cases, including nonimmigrant visa DUI for clients in Orange County. Reach out to us as soon as possible so that we have ample time to work on your case and get you the best possible results. As you read on, you will get to know more about nonimmigrant visa DUI.
Understanding California Immigration Laws in Connection with DUI
INA, known in full as the Immigration National Act, is the federal Act that governs immigration laws in the United States. Under this Act, a conviction of specific offenses can cause inadmissibility, removal, or both. When an offense subjects you to deportation, it implies that you might be removed from a country (in this case, the United States). And if it renders you inadmissible, you might not be capable of:
- Acquiring United States citizenship through naturalization
- Applying for a permanent residence (green card)
- Applying for a status adjustment from being unlawful to lawful
- Re-entering the United States after leaving
Offenses that can have you deported as per the U.S immigration law include:
Crimes that Involve Moral Turpitude
Immigration law does not clearly define moral turpitude. Therefore, it makes this the most challenging category of crimes when it comes to determining whether drunk-driving can result in deportation. However, generally, a crime of moral turpitude is that which involves fraud, dishonesty, or antisocial conduct that brings harm to others. Examples are fraud offenses and violent crimes.
Crimes that Involve Controlled Substances (Drugs)
A conviction of a drug-related offense for any drug found on the listed controlled substances at the federal level is considered a deportable crime. However, since California and federal laws define a drug in different ways, it makes this a certainly complicated section of the immigration laws. Due to the difference in definitions, using a DUID conviction (VC 23152f) as a reason for deportation is open to challenge. However, a nonimmigrant may still need to fight extradition before an immigration judge. Thus, it is best if the nonimmigrant avoids a DUID conviction to begin with.
DUID with Past Convictions
Another issue with DUID offenses is that when you get arrested, it may lead to advanced investigations. This may cause problems even if you aren’t ultimately convicted of the DUID crime. The reason for this is that it’s unlawful for a person to operate a vehicle in California if he/she has any form of drug addiction.
Therefore, if you hold a nonimmigrant visa, and the police find drug paraphernalia on you, you may face difficulties. Or, if you have past DUID convictions which make the use of drugs appear like a repeated occurrence, you could also face hardships in fighting deportation.
If you are arrested for a DUI of drugs, you should, as soon as possible, contact a skilled DUI attorney who is also conversant with immigration laws.
Aggravated felonies are crimes designated as so by the U.S congress. An offense doesn’t necessarily need to qualify as a felony under the law of California for it to be an aggravated felony. So far, thirty crimes have been identified to be aggravated felonies. Inclusive of these crimes are violent felonies like rape, murder, and kidnapping. Other aggravated felonies include several low-level white collar and drug crimes in California. As of the present, DUI is not categorized among aggravated felony offenses.
Offenses that have to do with Purposeful Child Neglect
In California, driving while intoxicated when carrying a child passenger can also be charged as a crime of child endangerment (PC 273a). Consequently, a nonimmigrant who gets convicted of child endangerment or DUI with a minor in the vehicle may be subject to removal proceedings.
Merely exposing a child to dangerous conditions negligently isn’t a reason for deportation. However, intentionally subjecting a minor to risky conditions is a reason for removal as per the INA.
Child endangerment is a complex and technical area that may easily result in problems unless your DUI defense attorney has an understanding of the immigration law.
Inadmissible crimes refer to those crimes that prevent one from being capable of entering the United States legally, of being a United States citizen or applying for a green card. These crimes include:
- Most drug-related offenses
- Any crime of moral turpitude committed within five years of admission into the U.S.
- Two or more offenses whose total prison terms equal to five years or more
- Any crime or crimes that portray one to lack good morals
Note that an offense can fit into more than one category, which makes it hard for a nonimmigrant to know whether a particular crime can result in inadmissibility, deportation, or both. Criminal attorneys have to advise their nonimmigrant clients of the possible immigration-related consequences of:
- Entering a no contest plea or pleading guilty to an offense, or
- Any offered plea deal to which the nonimmigrant wants to agree
If the defendant isn’t advised of these consequences, he/she can file a Padilla Motion seeking to set the conviction aside.
The Consequences of Ordinary Drunk-Driving Convictions on nonimmigrants
As of the present, most convictions of driving while intoxicated with alcohol don’t bear any negative consequences on immigration. Drunk-driving is usually a misdemeanor offense. It is neither categorized under the crimes involving moral turpitude or aggravated felonies.
Courts have repeatedly held that a mere DUI by itself isn’t a ground for removal. Common DUI offenses whose convictions do not bear immigration-related consequences are:
- DUI of alcohol under 23152a
- VC 23152(b), operating a vehicle when you have a blood alcohol content of .08% or greater
- DUI resulting in injury as per VC 23153
The only possible way in which any of the offenses mentioned above would likely trigger immigration punishment would be in case:
- You were found guilty of another offense that was based on a similar incident like the one you are facing, or you had a past criminal record
- The total prison or jail sentences for your offenses were equivalent to five/more years
The INA doesn’t define what a crime involving moral turpitude means. However, it is agreed upon under the immigration law that a simple drunk-driving offense is not to be treated as a crime involving moral turpitude.
Courts have depended on the federal BIA’s (Board of Immigration Appeals) interpretation of crimes involving moral turpitude. The BIA’s definition of moral turpitude is any behavior that can shock the conscience of the public. Such conduct is one that is vile, depraved, base, and unacceptable for people in society.
When deciding whether or not an offense qualifies to be a crime involving moral turpitude, courts will first go through the criminal law defining the offense. To be considered a crime involving moral turpitude, a defendant must have had a given intent that led him/her to commit that crime. Ordinary criminal negligence isn’t enough.
That is why an ordinary DUI conviction isn’t considered a crime involving moral turpitude. According to the laws of California, no particular mental state needs to be demonstrated for a drunk-driving conviction to take place. The only points the prosecutor needs to prove is that you drove a motor vehicle, and you were intoxicated with drugs or alcohol when you drove.
This is to say that the prosecutor does not need to substantiate that you had the intent to drive while drunk for you to be convicted of DUI. Neither does he or she need to demonstrate that you had the intention to violate traffic laws or harm anyone.
Is DUI Causing Injury a Crime of Moral Turpitude?
Historically, a drunk-driving offense that results in death or injuries was not considered a crime of moral turpitude. The reason for this is that for an offense to be classified as a crime of moral turpitude, the law defining it has to reveal the specific intent. Before, this necessitated that an offense should be committed willfully or knowingly. This means that either:
- The defendant had the intention to achieve the results the law is intended to punish
- The defendant was aware that his/her acts would generate those results
However, in the case titled Matter of Franklin, the BIA (Board of Immigration Appeals) ruled that criminal negligence was enough behavior to render a crime to be involving moral turpitude. This is worrying for nonimmigrants. The AAO (Administrative Appeals Office) held that this rule applies to PC 191.5, gross vehicular manslaughter while DUI. The reason behind this is that:
- Violating PC 191.5 requires one to act with gross negligence
- The Supreme Court of California’s meaning of gross carelessness is similar to that of the law that ruled the Matter of Franklin case
It is unclear whether or not the federal court or BIA would apply this reasoning during a removal case. However, criminal defense and immigration lawyers should be concerned about this matter.
DUI Resulting in the Death of Someone Else
DUI is still not an offense involving moral turpitude, whether or not someone else dies in the commission of the offense. As we said earlier, there has to be particular intent from the defendant to commit a crime or accomplish specific results for an offense to be of moral turpitude.
However, one form of drunk-driving offense that qualifies to be a crime of moral turpitude is Watson’s murder/DUI murder. DUI murder is charged when an individual who drives while indicated with drugs or alcohol acts with malice aforethought. A person acts with malice aforethought when:
- He/she deliberately does a particular action, which in this situation is driving while intoxicated
- The probable and natural repercussions of the action endanger people’s lives
- When he/she is committing the act, he/she is aware the activity is risky to another person’s life
- He/she intentionally acts with disregard for people’s lives
The crime of murder is classified under the crimes of moral turpitude and aggravated felonies. Therefore, a person convicted of DUI murder is both inadmissible and deportable.
Most DUIs Are Not Aggravated Felonies
Generally, DUI offenses are not considered to be aggravated felonies. For a crime to qualify as an aggravated felony, it has to be identified as so under the INA. However, the existing list of aggravated felonies by INA doesn’t include DUI.
And the Supreme Court of the United States has maintained that DUI is usually not an offense that involves violence. Crimes that involve violence are categorized as aggravated felonies. Therefore, unless you are found guilty of DUI murder, a DUI offense doesn’t include violent acts even if a person dies or is injured as a result.
Immigration Penalties for a DUID Conviction
A simple alcohol-related DUI may not have immigration consequences. However, DUID isn’t so simple, even if it is the first offense. As the United States’ immigration law provides, a person convicted of a crime related to drugs is inadmissible and subject to deportation. Under the statute of California, a DUI of drugs often has to do with illegal substances. Therefore, a conviction of this type of offense can lead to removal proceedings.
But, both the California State and federal laws on drugs have different meanings of a drug. For highly practical reasons, it means that if you are convicted under the laws of California, you may not be successfully deported. This is the situation whether or not the drug in your case is listed on the list of controlled substances recognized by federal law. If convicted under federal law, the rules would be different.
Nevertheless, if you are facing DUID charges, you may have to challenge them before an immigration judge as well, apart from the criminal court. Thus, instead of fighting the charges before a California criminal court, risking a conviction, you may select to enter a plea of no contest or a guilty plea to an offense that has little immigration consequences.
Driving While Intoxicated with a Minor in the Vehicle
You can face adverse immigration-related consequences if, at the time of DUI, a minor passenger was in your car. Driving while intoxicated when carrying a minor could subject you to a sentence of child endangerment as per PC 273a.
And as earlier discussed, DUI convictions don’t usually cause immigration-related repercussions. This is the case even if a sentence enhancement is imposed on you under VC 23572. But, in other cases, the prosecution could charge you with a child endangerment offense to add on or instead of VC 23572, enhanced penalties.
Now, unlike drunk-driving offenses, a child endangerment crime can be considered as one involving moral turpitude. This is the case because one section of the law punishes a person who intentionally exposes a child to dangerous conditions. Purposefully exposing a child to hazardous conditions is a reason for removal under the INA.
However, another section of the law punishes an individual who exposes a minor to situations where his/her health or person could be endangered. This is known as neglect minor endangerment and is not a reason for deportation.
In most cases, immigration and DUI attorneys will debate that no child endangerment charge should be a ground for deportation. However, it isn’t safe to presume that an immigration judge will comprehend these arguments. Therefore, your attorney should fight to avoid a conviction of child endangerment, to begin with.
How Multiple DUIs Would Affect Your Immigration Status
There are cases where a defendant would face inadmissibility if convicted of several DUI offenses. This is the case even if the multiple DUIs are ordinary offenses. This happens depending on the accumulated jail sentence period these offenses would have. Earlier, we mentioned that a nonimmigrant could be inadmissible if the following facts are true:
- He/she is found guilty of more than one offense (this includes one or several drunk-driving crimes).
- The accumulated sentence for all the convictions he/she has faced is equivalent to or more than five years.
For example, if you are convicted of a felony DUI and have past convictions, you will likely face inadmissibility. This is the case because fourth DUI offenses in ten years are charged as felonies. Its punishment is up to three years in jail. When this sentence is added together with the jail/prison terms of the previous convictions, it can add up to five or more years.
The Effect of a DUI Conviction in Determination of Good Character
Specific status changes require that a nonimmigrant must have an excellent moral personality. For example, good morals have to be demonstrated by any nonimmigrant who wants to:
- Be a citizen of the United States by naturalization
- Acquire cancellation of deportation in California
Typically, a single conviction of ordinary DUIs will not affect the determination of good morals negatively. However, if you have multiple convictions, it could result in the government, concluding that you are a habitual drunkard. According to the immigration law of the United States, a habitual drunkard isn’t deemed to possess good morals.
Keep in mind that being a habitual drunkard isn’t similar to being an alcoholic. If you are an alcoholic, it will not preclude good character determination. It is your behavior during a specific period that matters.
DUI Conviction for Undocumented Aliens
Although a drunk-driving conviction will not result in removal, it could expose you if you are in the country illegally. However, this doesn’t always happen. California is a sanctuary state. This implies that peace enforcement agencies in California won’t report to the United State’s Immigration & Customs Enforcement (ICE) when:
- A person identifies himself/herself to a state/local peace enforcement agency using an AB 60 license
- They also do not report when local/state peace enforcement officers arrest a person for low-level crimes like ordinary drunk-driving
But, the arrest and conviction made are in public records. Therefore, if the Immigration & Customs Enforcement is looking into a specific individual, an arrest could help to locate the person.
Also, the Immigration & Customs Enforcement agency may have been aware of older convictions of DUI already. As per the National Immigration Law Center, ICE officers regularly detained undocumented aliens who had drunk-driving convictions that had been made many years ago. The arrested individuals were then removed from the country for being illegally present.
Undocumented aliens should avoid an arrest for DUID or for driving while intoxicated with alcohol for them to be able to prevent deportation. Doing this is the only remedy to removal from the U.S for the undocumented alien. If an illegal alien is arrested for driving while intoxicated with drugs or alcohol and has past drunk-driving convictions, he/she needs a skilled lawyer by his/her side. The attorney could be aware of other ways the nonimmigrant can avoid deportation.
Both the United States’ non-citizens and citizens cannot enter Canada once they face any DUI conviction. Therefore, we suggest that before trying to be admitted to Canada and have a drunk-driving conviction on your record, you should contact a skilled DUI attorney.
Get a Nonimmigrant Visa DUI Defense Attorney Near Me
At Orange County DUI Defense Lawyer, we have all the resources we need to serve our clients. If you are in the country on a nonimmigrant visa, whether on a travel or work visa and have been accused of drunk-driving in the Orange County area, reach out to us. We will do all we can so you can have the best possible outcome for your case. We also handle immigrant visa DUI and any other matter that involves foreign citizens and foreign laws. While these forms of drunk-driving charges can be complicated and carry additional possible punishments, they do not always lead to deportation or inadmissibility. Contact us at 714-820-9592 to share about your case or for a free consultation.