A DUI arrest in California can be intimidating and confusing. However, things get from bad to worse if you are a non-citizen of the United States. An arrest for drunk or drugged driving for a non-immigrant means you risk deportation or compromising your immigration status. But with proper representation, you can prevent the harsh penalties. At San Diego DUI Attorney, we are available for guidance if you are a non-immigrant in Harmony Grove and have been charged with DUI.
Introduction to Immigration Laws
The Immigration and Nationality Act (INA) governs immigration laws. As per these statutes, a conviction for specific criminal acts may lead to deportation or inadmissibility in the U.S. for a non-immigrant visa. In case the sentencing for the offense makes you deportable, it means you are subject to removal from the United States. If the crime makes you inadmissible upon sentencing, it means you will be barred from applying for a green card, adjusting your status, or re-entering the country once you leave. You also lose your chances of becoming a U.S. citizen through naturalization.
Several crimes may get you removed from the country. One of the offenses that might get you deported is criminal moral turpitude. Any criminal act that involves fraud, dishonesty, or antisocial behavior that harms other people falls under this category of CIMT. Aggravated felonies are the other crimes that may have you removed out of the U.S. Take note that an aggravated felony is any offense chosen as such by the U.S. Congress. It means that the crime doesn’t necessarily need to be a felony under California laws. All violent felonies like kidnapping, murder, drug, and white-collar offenses fall under aggravated felonies.
Similarly, if you end up with a conviction for a drug crime or any controlled substance, you may face deportation. The challenge with immigration laws when it comes to this crime is that the definition of controlled substances as per the federal law is different from that of the California statutes. If you are arrested for drugged driving in Harmony Grove as per VC 23152f, the prosecution may have the chance to remove you from the country, although you could challenge the deportation. But to be safe, you should use your Harmony Grove DUI Attorney to avoid a conviction by all means.
You may face deportation if you get a DUID conviction, whereas you have prior sentences. The prior offenses don’t have to be for DUID charges. Remember, it is a crime to drive while addicted to any drug. For this reason, you can face deportation if you have previously been sentenced for a DUI of drugs that makes it appear as if you have a drug addiction. A conviction for possessing drug paraphernalia in your car will also act as prior if you are arrested for DUID.
An immigrant arrested for DUI with a child in the vehicle will also be facing deportation or removal in the event of a sentence. The offense is deemed as child endangerment, according to PC 273a. Keep in mind that knowingly endangering the life of a child is what amounts to deportation. But merely endangering a child through negligence is not enough to warrant removal. When facing charges for this crime, immigration laws will get complex hence the need for your Harmony Grove DUI Attorney to understand immigration laws.
As stated earlier, these are offenses that will deny you entry to the U.S. or to become a citizen of the U.S. by naturalization. Some of the characteristics of these offenses include:
Any two or more wrongful acts whose prison or jail sentence would add up to five years or more.
Crimes that demonstrate bad moral character
Any CIMT commissioned within a 5-year window upon admission in the U.S.
Take note that it isn’t unusual for an offense to be classified as both inadmissible and deportable. In such cases, it is often confusing whether a certain wrongful act will result in inadmissibility or deportation. Some of the DUI related charges that can get you removed from the country or affects your rights to remain in the U.S. include:
DUI with a minor 14 years or younger
Driving under the influence while your driving privileges are suspended
Upon a DUI arrest, a photo is taken, and your fingerprints are fed in the national database.
Further, upon conviction for the same offense, the records of the sentence are keyed into the database. Even if the files may not have immigration consequences right away, it will affect your life in several other ways. The reason for this is that whenever you want to change your immigration status, apply for a green card, visa renewal or begin the naturalization process, the national database records will be revisited. It is for this reason you should have a Harmony Grove DUI Attorney so that you can prevent a DUI sentencing by all means necessary.
Ordinary DUI and Immigration Laws
A typical DUI doesn’t amount to a moral turpitude crime. For this reason, the offense doesn’t attract harsh penalties. The wrongful act is usually a misdemeanor; hence many courts typically rule that merely a DUI doesn’t amount to deportation. It’s wise to understand that not all drunk or drugged driving charges result in immigration penalties. Some DUIs don’t result in removal or inadmissibility. They include:
The above offenses could only result in immigration consequences only if:
You are sentenced for a separate crime but in a similar situation
You had a prior sentencing
All your sentences add up to 5 or more years
The elements of a typical DUI include:
Having a BAC of .08 percent or more
Driving while drunk or drugged
Keep in mind when proving these aspects of the offense, the prosecuting attorney only needs to prove you were under the influence. Proving intent to injure someone or violate the law at the time of DUI is not their role.
Penalties of a Typical DUI Conviction
On top of the immigration consequences a DUI conviction might have on a non-immigrant, some effects will apply to both immigrants and non-immigrants. The penalties include:
A maximum of two days in jail
A monetary fine ranging from at least $390 to at most 2000 dollars
Serving a summary probation sentence
Attending a mandatory DUI school program
Suspension or revocation of driver’s license
The above penalties will be enhanced if the case has aggravating factors. These factors could result in adverse immigration consequences if you don’t have your Harmony Grove DUI Attorney to present mitigating factors or argue against the aggravating factors.
DUIs Involving Moral Turpitude
Although CIMT (Crimes Involving Moral Turpitude) is not defined under INA, ordinary DUI is not one of these crimes. The federal Board of Immigration Appeals is the only one that defines CIMT. BIA defines moral turpitude as bad morals that shocks the public conscience. It includes behavior that is not acceptable to the society or one that is intrinsically dishonorable, despicable, or immoral.
When deciding if a crime involved bad morals, courts consider the definition of the criminal act as per the law. Take note that moral negligence doesn’t add up to a CIMT, but if you, as the defendant, act with a specific intent to commit a wrongful act, then the crime will be deemed to involve moral depravity. For this reason, a standard DUI crime doesn’t fall under CITM because no mental state must be proved in court.
Also, a DUI causing injuries is not a CIMT because California statutes don’t include specific criminal intent in their definition. Without willful action, an illegal act can’t qualify as a CIMT.
Additionally, a drunk or a drugged driving charge will not become a CIMT even if someone is killed from the conduct. The specific intent to commission a crime or attain a certain outcome after a wrongful activity must be present for the offense to be deemed as CIMT.
Although ordinary DUI isn’t a CIMT, Watson murder counts as one. The reason being in the definition of this crime, the law requires the drunk or drugged driver to have acted with malice aforethought. When proving the crime of DUI murder, the prosecutor must demonstrate you acted with implied malice. Some of the conducts that amount to malice aforethought are:
Purposely operating a motor vehicle under the influence
The natural and likely penalties of the behavior endanger lives
During the time of drunk or drugged driving, you were aware that the actions would threaten human life.
Intentional action with cognizant disdain of human life
Keep in mind that murder is a CIMT and an aggravated felony at the same time. It means the offense may be classified as both deportable and inadmissible.
DUI Convictions and Aggravated Felonies
Currently, the definition of a DUI is not in the INA list of aggravated felonies. The U.S. supreme court also ascertained that DUI isn’t a crime of violence, so unless you are sentenced to Watson murder. Even causing injuries or death is not a violent crime, although specific aggravating factors can make the offense an aggravated felony.
Aggravating Factors and Immigration Consequences
Despite many drunk driving convictions not adversely affecting your immigration status, specific aggravating factors might affect the status.
DUI on a Suspended or Revoked License
The mental state of a person committing an ordinary DUI is very different from that of a person DUI on a suspended or revoked license. In a simple DUI, there is no requirement for you to be in a specific state of mind.
However, a person who drives on a revoked or a suspended license, they know in their right state of mind that the law forbids people from doing so. Even though the law prohibits that, the person chooses to drive, and to make matters worse, they do so while drunk or drugged. If you know that DUI without a driver’s license is a crime but still chose to violate the law, it will be assumed that you understood your actions. For this reason, DUI on a suspended license is a CIMT and carries adverse immigration consequences like deportation or inadmissibility.
DUI of Drugs
A typical DUI involving alcohol usually will have no immigration implications. But a DUI involving drugs is not simply because a conviction may get you removed from the country, inadmissible, or both. The reason being illegal or controlled substances are involved.
Note that the federal laws are different from those of California. The list of controlled substances under the federal law may not include some of the controlled substances listed under California law. For this reason, you may be convicted for DUID in California but fail to be deported. Sometimes the controlled substance might even be on the federal list, but still, removal from the U.S. will not succeed.
Whatever the case, deportation is possible. Therefore, instead of having to contest DUI of drugs charges in court with a possibility of a conviction, you could plead guilty or no contest to a lesser charge with fewer immigration implications.
DUI with a Passenger 14 Years or Younger
The crime of DUI with a child is a separate offense under child endangerment. For this reason, a sentence carries severe immigration implications. Also, the prosecutor must prove a specific mental state. They claim that you knew that you were putting the life of the child in danger when you engaged in the act of DUI. The court uses the mental state element to classify this offense as a CIMT. A conviction can result in deportation, inadmissibility, or other sentence enhancements.
Multiple DUI Sentences
If you have numerous DUI sentences, getting another one may make you inadmissible in the country. This happens regardless of whether the repeat offenses were typical DUIs. The basis of becoming inadmissible is the total number of years you have been sentenced for all the crimes. You will face these immigration consequences for this crime if you have been convicted of two or more offenses or if the sentences for all your convictions add up to 5 or more years.
Keep in mind that the sentences don’t need to be consecutive. If you have three prior DUIs and get the fourth one, it will be charged as a felony, and upon sentencing, you may face incarceration for up to three years. The third DUI may be added to the fourth, and if the two amounts to five or more years, the crime becomes inadmissible.
You can avoid the consequences by preventing long DUI jail terms. But for this to happen, you will need your Harmony Grove DUI Attorney so that he or she can negotiate with the prosecution to have the charges reduced for a shorter prison sentence. That way, you get to prevent the immigration implications of multiple DUI convictions.
Effects of DUI in Establishing Good Moral Character for Non-Immigrants
If you are a non-U.S. citizen, you must undergo naturalization to become a citizen. Not everyone qualifies for this process because there are certain requirements. One of the conditions is that you must demonstrate good moral character. Exemplary behavior may also result in the cancellation of removal from the United States.
When evaluating your moral character, the assessors will check your behavior for the last five years. In case you have one or two prior DUI convictions, that may not be enough to determine your moral character. However, if you have three or more DUIs in your record, you will be deemed a habitual drunkard. Take note that a habitual drunkard under INA is considered a person of moral turpitude or bad ethical behaviors.
Some people confuse habitual drunkards for alcoholics. But, you cannot be deported or become inadmissible because of alcoholism. Your conduct at the time you are drunk is what determines your moral character.
DUI by Those Unlawfully Present in the U.S.
If you are an undocumented immigrant or you are in the country unlawfully, a DUI may expose your illegal presence. Because California is a sanctuary state, if you identify yourself as an undocumented immigrant using an AB 60 license, the state or Harmony Grove law enforcement agencies, or when the police arrest you for a simple DUI, they don’t need to inform the ICE. However, arrests or sentences are always made public, which means the ICE can easily trace the records.
Illegal aliens should avoid DUI arrests by all means because once ICE comes across the records showing an arrest or conviction for a DUI, you will be facing removal. Therefore, if you have a drunk or drugged charge, you will need a Harmony Grove DUI Attorney. With a legal expert offering legal guidance, he or she will know the available options to avoid a removal from the country or have it canceled.
Effects of a DUI Charge Sentence on your Re-Entry to the U.S.
A non-immigrant visa can be revoked because of drunk or drugged driving while you are outside the country. Re-entering the U.S. becomes difficult, especially if you are not aware the visa was revoked. You will need to apply for a non-immigrant visa again, and chances of the application being turned down are high.
In case your DUI case is concluded, to re-enter the country, you need to undergo a medical examination conducted by a government physician. The purpose of the tests is to check if you are in a good mental state to re-enter the United states. If you are unfit, you will undergo treatment first before re-entering the country.
Find a Non-Immigrant Visa DUI Attorney Near Me
San Diego DUI Attorney is ready to help if you are a non-immigrant in Harmony Grove and are facing DUI charges. Contact us today at 619-535-7150 so that we can discuss your case and find various ways to prevent immigration consequences.