For non-U.S. citizens, a DUI conviction can come with more stress since they will usually worry about whether it will impact their immigration status or not. In fact, one of the first questions immigrants ask if charged with DUI is, Will a conviction result in deportation? The general answer to this question is that it depends on the type of DUI violation. A simple DUI conviction does not generally subject an alien defendant to immigration repercussions, but there are some restricted cases where it may.
DUI May or May Not Be a Deportable Crime
The national INA (Immigration and Nationality Act) governs the United States immigration law. According to the INA, certain convictions can result in inadmissibility and deportation (or removal) for immigrants.
If an offense makes an alien deportable, they might be removed from the U.S. On the other hand, if a violation makes an alien inadmissible, they may not reenter the U.S. after leaving, obtain their U.S. citizenship (become naturalized), qualify for a green card (permanent residence), or qualify to adjust their status to legal from illegal.
There are several classes of deportable crimes, including aggravated felonies, CIMT (crimes that involve moral turpitude), drug offenses, and crimes that involve conscious child neglect.
Conscious Child Neglect
There might be negative immigration repercussions when a person drives while intoxicated with a minor passenger in the vehicle. That is because DUI with a minor passenger is at times prosecuted as child endangerment under PC 273a, which is deemed a deportable offense.
Unlike driving under the influence, child endangerment can be a crime involving moral turpitude, as we shall see below. That is because one section of PC 2273a of the law penalizes someone who consciously places a minor in danger. Consciously endangering a child is a reason for deportation, according to the INA.
However, another section of Penal Code 273(a) punishes an accused person who subjects a minor to a situation or surroundings where their health or person might be endangered. This refers to negligent child endangerment, which does not qualify as grounds for removal.
This is another complex and technical area that can easily result in problems. An immigrant facing charges of DUI with a child passenger should work with a DUI attorney who is also experienced in immigration law. Most immigration attorneys argue that no PC 273a charge should be a reason for removal. However, it is unsafe to presume that an overworked immigration court judge will understand these extremely technical arguments.
Drug Crimes
Whereas a simple violation of driving while intoxicated with alcohol usually does not have immigration repercussions, driving while intoxicated with narcotics is not that simple a crime.
A conviction connected to any drug under the federal listing of regulated substances is deemed a deportable violation. But, since the California description of drug offenses differs from federal law’s definition, this is an intricate area under immigration law.
For example, whereas California considers DUID to be essentially the same crime as DUI of alcohol, the federal statute does not. The federal immigration statute considers drug offenses both inadmissible and deportable crimes; hence, DUID is deemed a crime that can result in deportation and inadmissibility.
Also, according to the law, driving under the influence of drugs often entails illegal substances. And when that is the case, a DUID conviction can subject an immigrant to removal proceedings. However, federal and California have varying definitions of regulated substances. For extremely technical reasons, this frequently means that an immigrant found guilty per California drug statutes cannot face deportation, even if the drug appears on the federal list of controlled substances (a drug conviction on the federal level is different).
However, an alien may still need to fight the charges before an immigration judge. So, instead of fighting the charges in state criminal court and facing conviction, they may prefer pleading no contest or guilty to an offense with lenient immigration consequences.
Another possible problem with drugged driving is that a criminal arrest may trigger a comprehensive investigation. This could be an issue whether or not the immigrant defendant is found guilty of DUID since it is unlawful for a person to operate a vehicle in California if they are addicted to a drug.
Therefore, if an immigrant defendant is found in possession of drug paraphernalia or has a past DUID conviction that makes narcotics use appear as a habitual issue, they could face problems.
Since DUID can have adverse immigration consequences or trigger further investigations, you want to, if you are an immigrant facing charges, work hand in hand with a DUI criminal defense counsel who is also experienced in immigration law and who can negotiate with the D.A. for a plea deal that will subject you to a conviction that will not lead to deportation.
Aggravated Felonies
Aggravated felonies are crimes classified as so by the U.S. Congress. They do not necessarily have to be felonies under California statute. Thirty crimes are presently considered aggravated felonies, including violent felonies like kidnapping, rape, and murder.
Aggravated felonies also include several low-level state drug offenses and white-collar offenses. But currently, DUI is not on the list of aggravated felony crimes. Also, the Supreme Court of the U.S. has ruled that DUI is generally not an offense involving violence. Offenses that involve violence constitute a category of violations that often count as aggravated felonies. Therefore, unless someone is found guilty of DUI murder (Watson murder), DUI is not a violation involving violence, even when it has caused death or injury.
Congress might add DUI with death or injury to the aggravated felony definition in the future. However, at the moment, most DUIs are not listed as so.
Moral Turpitude Offenses
The legal meaning of CIMT is vague, making this category the most problematic for establishing whether intoxicated driving can result in deportation. However, generally, CIMTs are those that involve fraud, dishonesty, or antisocial conduct that hurts others and those that require some kind of intent or knowledge that you are breaking the law. Examples include violent and fraud-related crimes. That means an ordinary DUI violation is not considered a crime of moral turpitude.
Courts have depended on the CIMT interpretation used by the BIA (Board of Immigration Appeals), which describes moral turpitude as behaviors that shock public conscience. That includes behavior that is depraved, vile, inherently base, and unacceptable for people in a given society.
The Element of Intent Is Necessary in CIMTs
When determining whether or not an offense is a crime of moral turpitude, courts look at the law describing the crime. For a violation to be considered a CIMT, it must require the accused person to possess the specific intention to perpetrate the violation. Criminal negligence alone does not suffice.
That is why an ordinary DUI conviction does not fall under the CIMT category. California DUI laws do not require the establishment of a specific mental condition or state for a conviction to happen. The only case facts the D.A. must prove are:
- The accused operated an auto and
- They were intoxicated with drugs or alcohol when they drove.
Put otherwise; the district attorney does not have to prove that the accused meant to drive while intoxicated or that the accused meant to injure anyone or break a traffic statute.
However, since CMITs require some kind of knowledge that the accused was committing a crime, a DUI with a suspended license can be classified as a CIMT in some cases and, therefore, subject an immigrant to deportation. While DUI can happen when a person has simply had multiple drinks, DUI on a suspended license is a CIMT because it involves the defendant knowingly and willingly choosing to drive, aware that the court or DMV has suspended their driving privilege.
DUI With Injury
DUI with injury was originally not a CIMT because, to be considered a crime of moral turpitude, the law describing the crime must mention a specific criminal intention. Previously, this necessitated that an offense be perpetrated knowingly or willfully, meaning the accused meant to achieve the results the law punishes or knew their actions would accomplish that outcome.
However, in the “Matter of Franklin” case, the BIA ruled that recklessness is sufficient to make a crime a CIMT, which should worry immigrants. The AAO (Administrative Appeals Office) has recommended that this ruling apply to PC 191.5, gross vehicular manslaughter while DUI, especially when a person is seeking an inadmissibility waiver. They have reasoned that a violation of 191.5 PC requires a gross negligence element, and the Supreme Court of California's gross negligence definition resembles the description of recklessness under the Matter of Franklin case.
The BIA or federal courts have not mentioned whether they would refer to this logic in a deportation case. However, it is an issue immigrants should be concerned about.
DUI Causing Death
DUI is generally not a CIMT, even if someone dies as a consequence. A specific intention to perpetrate an offense or accomplish certain results must exist for an offense to be considered a moral turpitude crime. As mentioned, there are concerns that this might be changing for 191.5 PC violation cases.
There is one exception for DUI resulting in death. One DUI violation categorized as a CIMT is Watson murder or DUI murder. DUI murder is charged when someone who drives while intoxicated with drugs or alcohol acts with malice aforethought or implied malice. A person acts with malice aforethought when they:
- Deliberately commit an act (DUI in this scenario).
- The probable and natural repercussions of the action pose a danger to people's lives.
- When the defendant acted, they knew the act endangered people's lives.
- The accused acted with knowing disregard for people's lives.
Murder falls under the CIMT and aggravated felony categories. So, a person found guilty will face both inadmissibility and deportation.
Multiple DUI Convictions
Technically, having multiple ordinary DUI convictions does not lead to an immigrant being deported. Instead, the convictions can make them inadmissible to the United States. That means that while the immigrant cannot face deportation, they can be disqualified from reentering the United States after they leave. They will also be disqualified for United States citizenship and be unable to apply to adjust their immigration status or for permanent residence.
Inadmissibility due to multiple DUI convictions is based on the total prison or jail time the non-citizen was subject to for the offenses for which they were convicted.
Merely having two drunk driving convictions does not subject an immigrant to inadmissibility. Even one felony intoxicated driving conviction is insufficient to lead to immigration problems. However, if the alien has been sentenced to an accumulative five or several years in custody for a single or multiple crimes that include DUI, they will be subject to inadmissibility. With enough DUI convictions, this period will add up, particularly since the five years are cumulative across a lifetime.
The five or more years for several convictions are particularly likely to impact individuals found guilty of felony drunk driving, depending on previous convictions. That is because a conviction of DUI for the fourth time in ten years is considered a felony violation that can subject a person to up to three years in custody. If combined with the jail or prison terms for past DUI convictions (and any other offenses the immigrant has perpetrated), that may push the alien beyond the stipulated five years.
It is also critical to note that more than one DUI conviction can lead to the government categorizing a person as a habitual drunkard. Per the United States immigration laws, a habitual drunkard is deemed to lack good moral character. Once the government has categorized an immigrant as a habitual drunkard, it can be more challenging for them to be naturalized (that is, acquire United States citizenship) or acquire cancellation of deportation.
Remember, being a habitual drunkard differs from being considered an alcoholic. Of itself, alcoholism will not prevent a person from being considered to have good moral character. It is an individual’s behavior during the applicable timeframe that counts.
DUI’s Effect on Illegal Immigrants
Although a conviction for a simple drunk driving offense is not grounds for removal, it may flag a non-citizen’s illegal presence, although this does not always happen. Note that California is a sanctuary state. That means even illegal immigrants do not automatically face deportation just because they have been arrested for suspected DUI. California police will not call ICE immediately when a person is arrested for a low-level offense like a simple DUI or utilizes an AB 60 driver’s license as proof of identity when arrested by local or state law enforcement.
That said, whereas the local police cannot call ICE merely because they have arrested a person for driving while drunk, convictions and arrests are public criminal records. Therefore, if immigration officers are already searching for specific illegal immigrants, a criminal arrest might help them identify and detain them.
Also, ICE may already know about older DUI convictions. The National Immigration Law Center mentions that in 2017, immigration officers detained illegal immigrants with drunk-driving convictions that were several years old. The individuals were then subjected to deportation for their illegal presence.
Unfortunately, the only option for an illegal alien to avoid removal due to a DUI conviction or arrest is to avoid driving while intoxicated with drugs or alcohol.
If you are an undocumented immigrant arrested for driving while intoxicated with drugs or alcohol or who has an intoxicated driving conviction or arrest on your criminal record, you want to call a skilled DUI lawyer to know your options.
DUI Is a Disqualifying Crime for DACA
Immigrants who arrived in the United States as minors brought by their parents illegally might have special protection under the DACA (Deferred Action for Childhood Arrivals) program. These individuals are known as dreamers, and DACA can secure employment authorization and stay in the U.S. for them.
However, it is essential to note that whereas a drunk-driving conviction will not impact most non-citizens’ immigration status, those in the United States under the DACA program could lose their immigration status if caught driving while intoxicated. That is because DACA has laid down strict regulations that provide that any substantial misdemeanor violation, the listing of which includes drunk driving, can lead to them losing their immigration status under the program.
Considering this, those under the DACA program want to hire an experienced lawyer immediately if charged with driving while intoxicated, as this offense can have severe repercussions for them.
Find an Experienced Los Angeles Immigration Attorney Near Me
More than anybody else, immigrants facing DUI charges need a skilled immigration lawyer knowledgeable in DUI laws to tackle their case and fight to defend their rights and protect their capability to remain in the U.S. If you are an immigrant, whether legal or illegal, charged with DUI, we at California Immigration Attorney can help.
We have more than three years of combined experience, and we understand the challenges immigrants and their families face in California. Pleading guilty may lead to immigration repercussions, including deportation. Obtain legal advice before admitting any charges. Regardless of where you have been charged in California, contact us at 424-789-8809 to set up a complimentary consultation to discuss your case.