Nonimmigrant Visa DUI

An Overview of Immigration Law

U.S immigration laws are governed by the Immigration and Nationality Act (INA). This Act outlines the various offenses that can result in deportation or inadmissibility to the U.S. or both. A crime that makes a person deportable means the person is evicted or removed from the U.S.

A crime that makes a person inadmissible means that the person cannot:

• Come back to the country once they leave
• Cannot naturalize to a citizen
• Seek to become a permanent resident
• Apply to get their status adjusted to legal from an illegal one

Under the law, various crimes exist that can lead to deportation. These crimes include:

• Aggravated felony crimes
• Crimes involving moral turpitude (CIMT)
• Crimes involving drugs or controlled substances
• Crimes of child neglect (DUI with a Minor)

Crimes of Moral Turpitude (CIMT)

The description of moral turpitude is not clear by the law. This causes it to be challenging in establishing whether a DUI offense can result in deportation. However, a CIMT crime is an offense that involves fraud, dishonesty, or actions that are dangerous to others and can cause injuries.

Aggravated Felonies

Various crimes have been categorized as aggravated by congress. Most of these are violent crimes against others, such as rape, murder, or kidnapping, among others.

However, there are other crimes not violent in nature but fall under this category. Some of these may include white-collar offenses or drug-related crimes. Currently, however, DUI offenses are not in this category of crimes.

Drug Offenses

The federal government has a list of substances that are described as controlled, illicit, or illegal. A guilty verdict for a drug offense found in that list is a deportable crime. Although drug crimes are defined differently by California, it makes it complicated when it comes to immigration law. Regardless, it is best to stay away from a DUID conviction because it may mean facing the possibility of deportation.

DUID with Previous Convictions

If one is arrested on a DUID offense, it may result in more investigations being carried out. Even when an individual does not get convicted of driving under the influence of drugs, an arrest can be problematic. The state of California prohibits any person from driving if they are on drugs that cause them intoxication or are addicted.

If, upon arrest, the police discover drug-related equipment in the car or the accused holds another DUID conviction, it can be assumed that he or she is a frequent drug user. This can cause severe difficulties for an immigrant.

If you are an immigrant and you get arrested for a DUID offense, you must get in touch with a DUI attorney that understands immigration laws as soon as you can.

Knowing Child Neglect – DUI with a Minor

A DUI charge with a minor sometimes gets prosecuted under PEN 273a child endangerment. Subsequently, when an immigrant is charged with and convicted of the offense, he/she may face proceedings for his/her deportation.

It is important to note that negligently putting a minor in danger will not lead to deportation, but knowingly placing a minor in a dangerous situation, is a basis for removal under the Immigration and Nationality Act (INA). This is also another complex aspect of the law that a defendant needs a DUI lawyer that understands immigration law.

Inadmissible Crimes

These are offenses that prevent an individual from entering back to America legally or becoming a citizen of the United States. These crimes also prevent a person from getting a green card. These offenses include:

• Crimes that involve moral turpitude and are committed in five years from the time a person entered the U.S
• Majority of drug crimes
• Two or more crimes that see a defendant spend five years in total in jail
• Crimes that show the defendant lacks good moral character

Sometimes one crime can fit in various categories. Due to this, it becomes difficult to determine what charge may result in the inadmissibility or deportation of a non-citizen.

Criminal lawyers everywhere must explain to their non-citizen clients the consequences to their immigration status when:

• They plead guilty or no-contest plea to an offense
• They are considering a suggested plea bargain

Immigration Laws and Standard DUI Charges

Most DUI convictions have no significant consequences for non-citizens. The most common DUI charges are prosecuted as misdemeanors and do not qualify as aggravated felony offenses or CIMT. Most courts hold that a simple DUI offense raises no grounds to have a person deported.

Some of the standard DUI offenses that don’t have consequences in immigration are:

• VEH 23152(a), driving under the influence of alcohol
• VEH 23152(b) arrested driving when your BAC is at 0.08% or more
• VEH 23153, a DUI offense resulting in injuries

However, despite these charges being normal, some circumstances may cause them to trigger consequences with immigration law. These circumstances are:

• If the accused had a previous conviction of a similar offense or another criminal conviction
• The defendant has been sentenced for a total of five years for the various convictions

1. Moral Turpitude DUI Crimes

The Immigration and Nationality Act vaguely defines crimes of moral turpitude. Fortunately, a simple DUI offense does not qualify as a crime involving moral turpitude. However, courts in California have depended on the definition of crimes involving moral turpitude, as described by the Board of Immigration Appeals (BIA). Crimes involving moral turpitude (CIMT), according to the explanation offered by the BIA are crimes that shock the conscience of the public. Behavior that is :

• Depraved or vile and
• Unacceptable of individuals living within a community or society

The Element of Intent in CIMT Crimes

During the process of establishing whether an offense can be classified as a CIMT, the court will analyze the statute that defines the crime. A CIMT offense needs a defendant to hold a specific intention of committing the offense. Simple criminal negligent behavior is not sufficient to classify an offense as a CIMT.

Due to this, a standard conviction of drunk driving is not considered an offense of turpitude. In California, for a person to be convicted of a DUI, there is no requirement to show the mental state of the defendant. The prosecutor needs only to prove two facts of the offense. These are:

• The defendant drove the vehicle
• Either drugs or alcohol highly intoxicated the defendant as they drove

This means the prosecution is not required to show the defendant had the intention of committing the offense or violating any laws.

1. Moral Turpitude DUI Offense Causing Bodily Injury

Previously, a DUI offense that resulted in causing injuries to a third party was not categorized as an offense with moral turpitude. The law required a CIMT offense to have an intention. The crime needed to have been committed knowingly or willingly. This means that the accused wanted to see the results of their crime and was aware that their deeds would give the desired results.

However, the Board of Immigration Appeals (BIA) later held that a crime involving criminal carelessness or recklessness was sufficient to qualify the offense as a CIMT. With this conclusion, it has been suggested that violations of PEN 191.5 gross vehicular manslaughter while under the influence qualifies as an offense of CIMT. This means if a person is convicted of this kind of a crime, they are inadmissible to the country. This is based on the reasoning that:

• A violation of PEN 191.5 needs the defendant to be grossly negligent and
• Gross negligence definition, according to the Supreme Court in California, is similar to that of recklessness that makes a crime a CIMT

2. Moral Turpitude DUI Offense Resulting in Death

Typically, a DUI offense that results in death is not a moral turpitude crime. As earlier discussed, the defendant must have an intention for a violation to qualify as a CIMT. However, with recent happenings, this may change with regard to vehicular manslaughter when drugged or drunk.

3. DUI Murder or Watson Murder

Watson murder or DUI murder is a DUI offense that is classified as a CIMT. A person is prosecuted on charges of Watson murder when he or she drives drugged or drunk and acts maliciously. This is known as acting with malicious aforethought. A person is believed to have acted maliciously when:

• The person purposely does an act for instance drives intoxicated intentionally
• The possible repercussions of the deed are risky to people
• As a defendant acts, they are aware of its danger
• The person acted deliberately consciously disregarding human life

The crime of murder is categorized as a CIMT and an aggravated offense or felony. This means that a non-citizen convicted of this crime is inadmissible and deportable.

Aggravated DUI Offenses

DUI offenses in California are not categorized as aggravated felonies. For a crime to qualify as an aggravated offense or felony, it must carry this definition in the Immigration and Nationality Act. However, the current aggravated felony list doesn’t have DUI offenses as one of them.

Additionally, the Supreme Court also does not consider DUI crimes as offenses of violence. In this case, the defendant must be convicted of vehicular manslaughter or Watson murder to call the crime aggravated. Generally, DUI crimes, even when they result in injuries or fatalities, are not crimes of violence.

However, in the future, this may change if Congress adds the offense of DUI, resulting in injuries or fatalities as an aggravated felony.

Consequences on Immigration when Charged with a DUID

As earlier stated, a simple DUI offense in California involving alcohol intoxication does not negatively impact the immigration status of a non-citizen. Unfortunately, a DUI involving drugs is as simple. The immigration laws of the U.S indicate that any person convicted of a drug-related crime is both inadmissible and deportable.

In California, a DUID offense involves the presence of controlled substances. When a conviction is given, the defendant is subjected to deportation.

However, the laws on drugs in the federal government and California define controlled substances differently. This means that a person convicted of a drug-related crime in California may not be deported successfully even when the said drug is listed as controlled. This does not mean that the state will not try to expel the defendant, but for him or her to stay in the state, he/she must challenge the deportation orders in court. Immigrants should plead no contest to crimes that carry insignificant immigration consequences.

DUI with a Minor

Driving intoxicated with a minor in the vehicle is a severe crime in California. It is equally serious for non-citizens. This kind of offense may lead to a child endangerment conviction, as found under PEN 273a.

Ideally, DUI convictions do not attract significant immigration consequences. An immigrant convicted of VEH 23572 of driving under the influence with a minor under 14 does not suffer immigration consequences. However, if the prosecutor decides to charge the immigrant with PEN 273a, Child Endangerment, as opposed to VEH 23572, this can have serious immigration consequences.

Child Endangerment as a CIMT crime

Child endangerment can become a CIMT crime as opposed to a DUI offense. One part of the law allows a person that places a minor in a dangerous situation knowingly to be punished. When a person intentionally endangers a child, these are grounds for deportation, according to INA.

On the other hand, PEN 273a punishes a person that puts a minor in circumstances where their health is endangered under negligent child endangerment. This is not a basis for deportation. Due to this, most immigration attorneys will contest that violations of PEN 273a must not be a basis for deportation. However, the judge has the discretion to make a ruling to deport or not to deport an immigrant guilty of the offense.

Repercussions of Multiple Convictions on DUI Offenses

A repeat offender is inadmissible in the U.S even when their convictions are of common DUI offenses. The total jail sentence the defendant has served dictates if the repeat offender can be deported or inadmissible. For an immigrant to be inadmissible, they:

• Have convictions of at least two crimes where at least one is a DUI offense and
• The cumulative jail sentence for the offenses equals five years or more

Felony DUI

An aggregate five-year sentence affects individuals convicted of DUI felonies in California, and have prior convictions of the same. DUI offenses are priorable offenses meaning for every subsequent offense; the penalty is more severe. In this case, a person facing a fourth DUI conviction within ten years will be convicted on felony charges, and the jail sentence can be three years. When this sentence is combined with previous jail sentences, it can get to five or more years. If an immigrant’s total jail time exceeds five years for any combination of crimes, he or she would be deported.

For instance, Martin is not a citizen of the U.S. However, over ten years, he has had four DUI convictions. In the first verdict, the sentencing was lenient, and he got probation and fine. The second conviction had an element of speeding that aggravated the offense. The judge hands him a six-month jail sentence. Later, he is faced with other charges of DUI, causing an injury. He is prosecuted on felony charges and gets two years in prison.

On his fourth conviction, automatically, the charges brought against him are felony charges, and the court is even harsher with him. Martin is convicted of the offense and sentenced to three years in prison. Cumulatively, his jail sentence comes to over five years.

The law indicates that a non-citizen needs only two convictions whose total jail time is five years or more to make him inadmissible. This means that Martin cannot get out of the country and get back as he would before; neither can he become a citizen of the U.S.

Consequences of DUI on Good Moral Character

An immigrant that wants changes in their status is required to demonstrate he or she is of good moral character. Some of the instances that require an immigrant to show they are of good morals are:

• When an immigrant wishes to become a citizen of the U.S
• When an immigrant wants to get his or her deportation orders revoked.

Typically, when a person has two or less standard DUI convictions, it does not affect their chances of getting naturalized. However, when one has multiple convictions, it will be concluded that the immigrant is an addict to alcohol. Under the immigration law, he is termed as a habitual drunkard who is not a character in good morals.

A habitual drunkard, in this case, is not an alcoholic. An alcoholic person can be of good character. However, the character or behavior of the individual when they are drunk is what leads to this conclusion.

For instance, Tom is a non-citizen but struggles with alcoholism. He joins Alcoholics Anonymous to help him overcome it and even attended a DUI school multiple times. He is typically very disciplined at work and respected in his community.

One day while at work, immigration officials do a sweep, and he is caught up. He is served with a notice for deportation for being in the country illegally. However, Tom decides to request a cancellation of the deportation order from the immigration court. Unfortunately for him, he already has multiple DUI convictions. These indicate that he is unable to control his drinking; hence, he is a habitual drunkard according to immigration laws. Because of this, his petition is denied on the basis that he doesn’t have good morals.

DUI Offenses by Unlawfully Present

By itself, a DUI verdict will not result in the removal of an immigrant. However, getting a DUI conviction will flag the unlawful presence of the immigrant in the country. However, this does not always apply. The state of California is referred to as the sanctuary state. What this means is that when an immigrant is found doing some things, the law enforcement agencies will not get in touch with ICE. These are:

• When an immigrant identifies themselves to the police or state agencies using an AB 60 license
• When an immigrant is arrested and convicted on a misdemeanor low-level offense like a simple DUI

However, every arrest and conviction is a public record, meaning it can be seen or accessed by anyone. If immigration and customs enforcement agency is searching for a person, your history of an arrest will help them locate you. It is possible to have your previous DUI convictions known to the ICE. There have been cases where ICE agents found undocumented immigrants from their old DUI convictions. These immigrants get arrested and deported because of their unlawful presence in the country.

Can an Alien Convicted of a DUI Avoid Deportation?

The answer is no. An unlawful immigrant can only avoid deportation on a DUI offense by avoiding using drugs or drinking and driving in the first place. An immigrant with a prior DUI conviction or one arrested for drugged or drunk driving needs to get in touch with a DUI attorney as soon as they can.

With your lawyer, it is possible to fight these allegations and may get the charges dismissed or reduced to simple DUI offenses that will not lead to your deportation.

Finding a Los Angeles DUI Attorney Near Me

A DUI offense is a priorable crime in California. The more you repeat the offense, the harsher the penalties become. This is true for both citizens and non-citizens alike. Multiple convictions and specific circumstances can make a person be deported or become inadmissible. This is devastating, despite the other penalties a person faces. When charges on drunk or drugged driving are brought up against you, getting in touch with a DUI lawyer is crucial to avoid the severe penalties. At Leah Legal in Van Nuys, we are experienced and ready to fight these allegations for you. Call us at 818-484-1100, and let us be of assistance to you.