Driving while intoxicated is punished harshly in California and the US in general. The consequences are punitive when you live in the U.S on a non-immigrant visa. For instance, non-immigrant visa holders could be deported if convicted of a DUI. Or, their visas could be revoked and rendered inadmissible to the U.S. However, this is not always the case. With proper legal representation, chances are you may not be subjected to adverse immigration consequences, and your immigration status will remain intact.
If you hold a non-immigrant visa in Van Nuys and its surrounding areas and have been charged with DUI, contact The DUI Defense Attorney law firm as soon as possible. Our attorneys boast knowledge of immigration laws in relation to DUI as well as California DUI laws. They may be able to help you avoid harsh penalties and keep your immigration status. In this article, we talk about how a DUI conviction and aggravating DUI factors can impact your immigration status.
Understanding Immigration Laws
Before we discuss how drunk-driving charges could affect your immigration status, let’s first understand the requirements of immigration law. United States’ immigration laws are governed by the federal Immigration and Nationality Act (INA). Under these laws, certain criminal convictions could result in inadmissibility, deportation, or both for Non-U.S. citizens. If an offense makes you deportable, it means you could be removed from the United States.
On the other hand, if an offense makes you inadmissible, it means you may not be able to do either of the following:
- Become a United States citizen through naturalization
- Re-enter the United States after you leave
- Apply to adjust status. For instance, changing the status from illegal to legal
- Apply for a green card
Several crimes can make you be ‘removed’ from the U.S. They include:
- Aggravated felonies
- Crimes that involve moral turpitude
- Drug (controlled substances) crimes
- Crimes that involve intentional child neglect
Inadmissible offenses include:
- Any moral turpitude committed within the first five years of your entry into the U.S.
- Most drug-related crimes
- Any two or more wrongdoings whose total prison time equals to five or more years
- Any crime that demonstrates a bad moral character
It is not uncommon for an offense to be classified as both deportable and inadmissible. In this case, it would make it hard for you to know whether the charges you are facing may lead to inadmissibility or deportation. An example of a crime that can be categorized as both a deportable and inadmissible crime is DUI. The DUI-related charges that can make you deported or be classified as inadmissible in the United States include:
- Multiple convictions of DUI (i.e., first, second, third, or fourth-offense DUI
- DUI on a revoked/suspended license
- DUI with a passenger under 14 years
If you are a non-immigrant, the moment you get arrested for any crime, DUI included, your details are entered into the national database. These details include your fingerprints, arrest record, and photo.
Similarly, if you are convicted of any crime, the conviction record is also fed into the database. This applies irrespective of whether you violated federal law or state law. With time, these records may negatively affect your immigration status even if they do not result in immediate immigration penalties. They will be considered mostly when you are:
- Applying for a visa renewal
- Applying for status adjustment
- Re-entering the U.S
- Applying for naturalization
- Vouching for your relative’s immigration
Therefore, if you are a non-immigrant, you must hire an experienced DUI defense attorney to help you fight any DUI charges against you. By beating DUI charges, you will be able to apply for the processes mentioned above without a hindrance.
Immigration Consequences for Simple DUI
Most of the DUI of alcohol convictions do not have adverse immigration consequences. Usually, a simple DUI is charged as a misdemeanor. It is also not classified as an aggravated felony or a crime involving moral turpitude. Courts in California have repeatedly ruled that merely driving while intoxicated by itself is not reason enough for deportation. DUI charges that do not usually carry immigration consequences are:
- VC 23152a, Driving Under the Influence of Alcohol
- VC 23152b, DUI with a blood alcohol concentration of 0.08% or more
- DUI causing injury under VC 23153
These charges can lead to immigration consequences only if:
- You were convicted of a separate offense but based on a similar incident
- You had a previous conviction
- The total sentences for all your crimes add up to five or more years
Even though you will not face immigration consequences, a simple DUI may subject you to criminal penalties if convicted. For first-time DUI offenders, the penalties include:
- A maximum of 48 hours in jail
- Up to $1, 000 in fines
- Attending a DUI School program
- Serving probation sentence
- Driver’s license suspension or revocation
Immigration Consequences for DUID
While an ordinary alcohol DUI charge has no immigration repercussions, DUID (Driving Under the Influence of Drugs) is not that simple. Under the United States immigration law, you are both inadmissible and deportable if you are convicted of a drug crime. As per the California law, drug-related DUIs often involve illegal substances. Thus, when convicted of DUID, you may be subjected to deportation.
However, federal and California drug laws differ in defining a controlled substance. For technical reasons, it usually means that a person convicted for DUID under California laws cannot successfully be removed from the country. This is so even if the drug is among the controlled substances on the federal listing (a federal DUID conviction is not the same).
However, you may still need to challenge the drug issue in an immigration court. Therefore, instead of challenging drug-related DUI charges in a criminal court, immigrants may choose to plead no contest or guilty to an offense with fewer immigration consequences. This is because, in a criminal court, you risk being convicted.
Immigration Consequences for DUI with a Passenger under 14 years
There can be negative immigration consequences if you drive while intoxicated and have a child passenger in the vehicle. Drunk-driving with a minor in your car can lead to a child endangerment conviction under California PC 273a.
As we mentioned earlier, convictions of DUI do not usually result in immigration penalties. This still applies even if you get enhanced penalties for drunk-driving with a passenger under 14 as per VC 23572. However, sometimes the prosecuting attorney can press child endangerment charges (PC 273a) instead of enhanced penalties. They may also charge you with child endangerment.
When this happens, it is most likely that you will face deportation. This is because endangering a child’s life can be a possible crime of moral turpitude. The violation is treated as such if you knowingly put a minor in danger. Deliberately endangering a child’s life is a basis for deportation as per the Immigration & Nationality Act.
Immigration Consequences for Multiple DUIs
Some repeat drunk-driving offenders may be inadmissible to the U.S even if their repeat offenses are simple DUIs. This is because admissibility for repeat offenders is based on the total jail sentence the immigrant gets for all offenses they have been convicted of. As we mentioned earlier, your case is inadmissible if:
- You have been convicted of two or more offenses (inclusive of a single or more DUIs)
- The sentences for all convictions amount to five or more years
A sentence of up to five years for multiple DUI convictions will most likely affect individuals convicted of felony DUIs based on past convictions. For instance, a fourth drunk-driving conviction within ten years carries a maximum of three years of jail time. Thus, when merged with the sentences of past DUI convictions, it may push a person to or over five years.
Immigration Consequences for DUI with a Revoked or Suspended License
Note that there is a difference between a person’s mental state when committing a simple DUI and when committing a DUI on a revoked or suspended driver’s license. As we mentioned before, a simple DUI doesn’t need an offender to be in a specific state of mind.
Alternatively, a person who operates a vehicle on a revoked or suspended license is aware that they are prohibited from doing so. Despite being forbidden, the person still chooses to drive, and even worse, while intoxicated with drugs or alcohol. The person is aware that drunk-driving without a driver’s license is against the law, but the knowledge does not stop them.
In this case, the mental state of a person makes drunk-driving on a revoked or suspended driver’s license a crime of moral turpitude. Thus, it can lead to severe immigration consequences like deportation.
How DUI Convictions Affect Naturalization
The process by which a non-U.S citizen becomes a U.S citizen is known as naturalization. The ability to undergo naturalization can be affected by a simple, first DUI offense. Most people across the world desire to become U.S citizens. It is for this reason that the requirements to qualify one as a citizen are quite strict.
Effect of DUI in Determining Good Character for Non-immigrants
For an immigrant to undergo specific status changes, they may be required to demonstrate exemplary behavioral character. For example, an excellent character has to be shown by an immigrant who wishes to:
- Become a United States’ citizen through naturalization
- Cancel their deportation
The process of naturalization needs one to prove that they have a good character. In determining a person’s good character, assessors of the naturalization procedure carefully examine a person’s conduct within the past five years.
Usually, having a single or two simple DUI convictions on a person’s record will not negatively affect the determination of good character. However, multiple convictions may cause the government to consider the individual as a habitual drunkard. A habitual drunkard as per the United States’ immigration law is a person considered not to have good character.
Note that habitual drunkards are not similar to alcoholics. Alcoholism does not inhibit the determination of good character. What matters is a person’s conduct during a particular period.
DUI by Undocumented Non-Immigrants
Although a conviction of DUI will not lead to deportation, it may expose a non-immigrant whose presence in the United States is illegal. California is known as a sanctuary state. By sanctuary, it means California police agencies will not contact U.S ICE (Immigration & Customs Enforcement) when:
- An undocumented non-immigrant identifies themselves to local or state law enforcement using an AB 60 driver’s license
- When a local or state police officer arrests an undocumented non-immigrant for a minor offense like simple DUI
However, any arrest or conviction is public record. Thus, in case ICE is after a specific person, their arrest might help ICE find that person.
Additionally, older DUI convictions might already be disclosed to the ICE. In 2017, officers of the ICE frequently arrested undocumented non-immigrants that had DUIs which were several years old. This is according to reports by the National Immigration Law Center. The immigrants were then deported for being unlawfully present in the U.S.
Undocumented non-immigrants need to avoid drunk-driving or DUID for them to avoid deportation. Unfortunately, this is the only solution to deportation for illegal aliens. A non-immigrant arrested for DUI of alcohol or DUID and has a prior DUI conviction record needs an expert DUI defense attorney. With an experienced attorney, they may know of any other options that could prevent their deportation.
The New State Department’s Policy on Non-Immigrants and DUI Convictions
In 2016, the U.S Department of state policy enacted a new policy that affects DUI offenders who are in the country on a non-immigrant visa. The implemented policy may have severe effects on your non-immigrant status in case you get arrested for drunk-driving. These effects may include visa revocation; a process called prudential revocation. A non-immigrant visa is revoked due to mental or physical health reasons. The reason for this is that the new policy creates a connection between DUI offenders with a person that has a mental or physical health problems.
This policy comes into play when the moment you are arrested and not when the court finds you guilty. This means that your visa could be revoked even if the court finds you innocent of the DUI charges against you.
However, it will be a relief to know that this policy does not make it mandatory for one to be deported after visa revocation. This means, still, the status of your U.S citizenship will be intact; it is only the stamp on the visa that becomes invalid. The explanation for this is that the department of state policy solely manages the issuance of visas and not legal entry into the United States.
The decision of who is legally entering the country at the entry point lies with the U.S Customs & Border Patrol. The penalties for breaking this State department’s policy are not yet clear. However, individuals affected under this policy should re-apply for a visa before trying to seek readmission into the United States.
How DUI Charges/Convictions Affect Re-entry into the Country
If your non-immigrant visa is revoked due to DUI while you are traveling outside the United States, you will not be allowed to re-enter the country. First, you have to go to a United States consulate in the country that you are in to apply for a new visa stamp to be allowed entry into the United States. It gets complicated if your case has not been resolved yet. In this case, you will most likely be denied renewal of your visa. This is because the United States consulate will need disposition paperwork to renew the visa.
Mostly, a person does not know their visa is revoked and travels outside the country before their case concludes. They also do not know that they will not be able to travel back on the same visa. In this case, you might be granted parole in the United States for a restricted reason of appearing for your criminal court proceedings.
After your case concludes, you will undergo medical tests before being given another visa stamp. The Department of State will refer you to a government physician for the medical examination. The physician administers the tests to determine whether you have a mental problem that is a threat to the property, your welfare, and safety or that of others (e.g., alcoholic or substance abuse). If you have a problem, you may be barred from re-entering into the United States until the problem is treated.
Get a Non-Immigrant Visa DUI Attorney Near Me
A DUI arrest or conviction can be overwhelming or stressing for anyone. The situation gets worse when you are being accused of DUI and are on a non-immigrant visa. Non-immigrant visa DUI charges are quite complex and come with additional possible consequences. However, it is untrue that these charges always lead to visa revocation, inadmissibility, or deportation. Hiring an experienced DUI defense attorney to fight for you could lower the possibility of experiencing these devastating consequences. At The DUI Defense Attorney, we are fully equipped and ready to help those in the Van Nuys area that possess non-immigrant visas and are facing DUI charges. Call us as soon as possible at 818-253-1913. We also handle immigrant visas as well as DUI cases involving federal law and foreign nationals.
Here are other law firms I recommend outside of Van Nuys if you are arrested in Orange County or San Diego: San Diego DUI Lawyer and Orange County DUI Lawyer