Immigration Consequences for DUI – Causes, reasons, and solutions if you are an undocumented
Immigration Consequences for DUI – Causes, reasons, and solutions if you are an undocumented
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Being arrested for any crime, whether felonies or misdemeanors, can trigger various consequences. Especially if you are an undocumented person in the United States, that is to say, whatever your current immigration status, it is best to take care of yourself in every possible way.
One of the most common causes of arrest today is DUI. A misdemeanor that can cause general consequences is the payment of fines (between $390-5000+), sentences ranging from 6 months to 16 years in jail, or even deportation and inadmissibility from the United States.
Undoubtedly, these are serious consequences that you may face. However, it is essential to mention that the immigration consequences for DUI will vary depending on your case. For this reason, we will discuss the causes, reasons, circumstances, and solutions if you are arrested for DUI as an undocumented person.
What is DUI?
In the United States, Driving Under the Influence (DUI) refers to a felony (in the State of California) caused by driving a vehicle under the influence of alcohol or; any drug that may impair the individual from driving responsibly.
The most common DUI arrest is for DUI for alcohol. Actually, in the State of California, the allowable blood alcohol concentration limit is .05. So, if you want to drive after drinking alcohol, you should consider not exceeding this limit if you do not want to be arrested for DUI.
What are the consequences of being arrested for DUI in the United States?
As we said at the beginning, it all depends on the circumstance in which you find yourself. So, for example, if it is your first DUI arrest, in most cases, those convicted do not face adverse immigration consequences as expected.
Nonetheless, depending on your circumstances, being arrested for DUI can lead to consequences such as inadmissibility to the United States, deportation, denial of citizenship or Green Card.
What DUI offenses are grounds for a non-citizen to deportation and/or inadmissibility?
These may depend on the case; however, the most common range from driving under the influence of legal or illegal drugs; Being arrested for DUI while a minor was in the car.; Worse yet, you have multiple DUI convictions or other criminal convictions.
It is relevant to mention that during Donald Trump’s presidency, attempts have been made to present Congress with various laws that would induce immediate deportation for immigrants. Although these attempts have failed, we must recommend that under any circumstances you should not drive if you are under the influence of any narcotic drug.
What would happen if I am arrested for DUI in the United States, being unlawful?
Interesting question, what would happen if you were an undocumented immigrant arrested for DUI? The simple answer, there is a high probability that you will be deported. It is not even for the criminal charge of DUI, but for being on U.S. soil without being lawfully present.
Now, the question will be asked, what should you do? First, of all, avoid driving and drinking. Although, to be fairer, we should deeply analyze what would be the motives and solutions to avoid the immigration consequences of DUI.
What are considered deportable and/or inadmissible crimes?
Before we begin, we should know that The Federal Immigration and Nationality Act (INA) governs immigration law in the United States. Therefore, it can be understood that the INA establishes that some criminal convictions are causes for deportation and/or inadmissibility in the territory.
Now, if a non-citizen is inadmissible, he/she cannot re-enter the country after his/her removal. Nor can he or she opt for naturalization (become a U.S. citizen). Instead, apply for permanent residency (Green Card) or apply for an adjustment of status from legal to illegal.
A DUI arrest can aggravate the offender’s immigration status terribly. Not only could you be deported, but you may be inadmissible to the U.S. state. Now, when is the offense a deportable act, and when is it inadmissible?
Deportation Crimes
These range from Crimes of moral turpitude (CIMT), Aggravated Felonies, Crimes involving the knowing abandonment of minors and/or Controlled Substance (drug) Crimes. And if you add to these cases a DUI crime, your immigration case may be in jeopardy.
When you are arrested for Driving Under the Influence, officers are required to conduct a thorough investigation of your police record. To make matters worse, it is not necessary to be under the influence of drugs to be arrested in the State of California, as it is illegal for a non-citizen to drive in California.
So if the offender has a history of drugs, they could face a severe immigration problem. Another case is the possession of drugs in the vehicle. In this case, it is advisable to contact a lawyer with experience in this type of case immediately.
Inadmissibility of crimes
These crimes are characterized by the expulsion without return of an individual to the territory, with the consequence that such persons are prevented from legally entering the country, including obtaining citizenship. For example, these crimes may be the following:
Suppose any CIMT is committed within the first five years of entry into the United States. Almost any crime involving drugs, any type of crime that, when added to another or by itself, can result in a sentence of 5 years or more. Finally, any crime demonstrates some lack of good moral character.
So if you are a non-citizen, think carefully about what you are doing before you go down a road of no return. We, immigration lawyers, are your allies, but you must help us ensure your success.
Can ordinary DUI convictions affect my immigration status?
The first point to understand is that being arrested for DUI is considered a misdemeanor, so most DUI cases do not have negative immigration consequences, or at least that is how it is today.
DUI is a misdemeanor, nor is it considered a Crime of moral turpitude or aggravated felony. But on the other hand, the courts have repeatedly maintained that DUI is not a cause for immediate deportation.
On the other hand, DUI would impact your immigration status as long as you have been charged with any other criminal offense (including one or more DUI); the other circumstance would be if you have a total of convictions that, in the aggregate, total a sentence of 5 years or more.
Can DUIs be considered as CIMTs?
According to the INA, DUI is not a crime of moral turpitude. Therefore, ordinary (simple) DUI will not be taken as a crime of moral turpitude. However, we must remember that according to the courts, CIMTs refer to any conduct that shocks the public conscience.
That is any conduct that is inherently low, vile, or depraved or any unacceptable activity and actions to persons living in such society. In addition, DUI can now be considered CIMT if the intent is to harm.
To determine whether it is CIMT, the court must examine the criminal statute that defines the crime. In the case of CIMT, the defendant must have the explicit intent to commit the crime. Therefore, criminal negligence is not enough to cause CIMT.
For that cause, DUI is not considered CIMT in the State of California. In fact, under its law, for an offender to be charged, no mental state of mind must be proven. All that is required to prove the crime is that the defendant was driving a vehicle and that, while this would happen, the defendant was under the influence of alcohol or a drug.
What does this mean? The prosecutor handling the case does not need to know if the defendant’s intent was to drive drunk or injure someone; it is enough that the defendant was under the influence and was driving. Remember that no drug addict may drive until he or she is fully recovered under California law.
And, if the defendant injured someone for DUI, would it be considered a CIMT?
Based on the historical facts, DUI is not considered a CIMT in the United States as long as it is not intentionally provoked. However, in the Franklin case, the Board of Appeals ruled that criminal recklessness was sufficient to cause a crime to be a CIMT.
This event is serious for the status of many immigrants. Accordingly, the Administrative Appeals Office (AAO) has ruled that this decision will apply as long as gross vehicular manslaughter while intoxicated, California Penal Code 191.5.
And, if the defendant caused someone’s death by DUI, would it be considered a CIMT?
Again, we repeat the same answer. Generally, drunk driving in the State of California is not considered a crime of moral turpitude, including if a person is killed in the process. It will only happen if there is a specific intent to commit it.
A unique case that counts as a CIMT for DUI is the murder of Charge Watson. This occurs when the defendant is driving while intoxicated or drugged, in addition to having malice aforethought.
Also, he or she must intentionally drive under the influence, the natural and probable consequences of the crime must threaten human life, the defendant must know that the crime may threaten life, and the defendant must act with conscious disregard for human life.
Therefore, murder is considered an aggravated felony as a CITM. This results in imprisonment plus deportation and inadmissibility to the United States.
Can DUIs be considered aggravated felonies?
For the most part, DUI convictions are not considered felonies. However, as mentioned previously, to be determined, the INA must list it for it to be counted as such. As is evident, the current list does not include driving under the influence as one.
In addition, the U.S. Supreme Court has held that DUID is not typically considered a crime of violence. Instead, any crime of violence constitutes a category of crimes referred to as aggravated felonies.
That said, unless it is a Watson Charge offense, the defendant would not be convicted under any crime of violence; regardless of whether it caused injury or even death to another person.
Although it is not currently considered an aggravated felony, it is likely that in the not-too-distant future, Congress will add DUI-causing injury or death as a felony. But, at least for now, DUI is not a crime on this list.
What are the immigration consequences if a drug DUI occurs?
Driving Under the Influence of Drugs (DUID) is a separate crime from being arrested for driving under alcohol. In fact, under U.S. immigration law, people who are incarcerated for drug offenses are deportable and inadmissible.
When an undocumented person is arrested for driving under the influence of drugs (usually illegal substances), the DUID conviction can subject someone to removal action, what is interested in this case, considering the federal laws of the State of California, which considers drugs in different definitions of controlled substances.
Therefore, if a person is convicted under California state drug laws, this will not be cause for deportation under any circumstances (important to note that a federal drug conviction is different). However, the immigrant will likely have to fight the legal matter in immigration court.
In this case, rather than fighting the charges (DUID) in criminal court and being convicted, it would be better to plead guilty or have no contest to the crime to have fewer immigration consequences.
Would it be a different circumstance if I committed DUI with a minor in the car?
If we talk about this section, we could say that we are dealing with a more severe issue. Therefore, we will take as a reference the Penal Code 273a.
Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.
California Penal Code, Title 9, Chapter 2 Abandonment and Neglect of children, 273a.
Based on what we have previously read, we can conclude that, as long as the defendant did not cause the child to be in a dangerous situation, the defendant will not face any severe consequences of a fine of up to $2,000.
Now, if we consider Vehicle Code 23572, plus DUI with a child under 14 years old in the car, the defendant would have no deportation problems even in this case since DUI is not a cause for deportation and inadmissibility.
However, the prosecutor has every right to charge him based on California Penal Code 273a for endangering the life of a minor rather than the above.
What would be the immigration consequences if I have multiple DUI convictions?
As mentioned, any individual arrested for multiple DUIs is potentially deportable and inadmissible to the United States, even if all the DUIs were ordinary. However, it all depends on the total amount of incarceration for which the immigrant was charged.
However, it will all depend on the total amount of incarceration for which the immigrant was charged. Keeping in mind that the immigrant may be inadmissible if he or she has had previous offenses, and they exceed a sentence of 5 years or more.
What would be the effect of DUI on a determination of good moral character?
Being considered an immigrant with good moral character significantly favors the defendant’s case. This could produce specific statutory changes, for example, if the immigrant wishes to become a naturalized person or obtain the cancellation of removal in the State of California.
Even having one or two ordinary DUI convictions would not affect this opportunity. However, if the convictions are varied, the State is within its rights to rule that the immigrant is a habitual drunkard. And, under U.S. immigration law, a habitual drunkard is not considered a person of good moral character.
What happens after being arrested for DUI if I am an illegal immigrant?
This is a more complex case because being arrested for DUI is not a cause for deportation, but being in the U.S. illegally is since it signals the presence of an immigrant. Although, there may be an escape in this case.
Let’s remember that California is known as the “Sanctuary State.” That means that agents would not communicate with ICE if the immigrant uses an AB 60 license to identify himself or herself to law enforcement or when arrested for a low-level offense such as DUI.
But, arrests and convictions are recorded in the Public Records. So, if U.S. Immigration and Customs Enforcement were looking for a specific name, the arrest would help ICE quickly locate it.
Whatever your case may be, we recommend that if you happen to be going through this situation or know someone who is, do not waste time and contact us, we are immigration attorneys in San Diego, California. You must do it immediately if you do not want to face the immigration consequences of a DUI. Then, we will advise you and solve your case.