Driving under the Influence (DUI) in California is no simple crime. Most people get intimidated and confused about what do when they are arrested. The situation becomes more overwhelming when you are not a United States citizen. Non-immigrant citizens risk being deported and their immigration status being compromised if they get arrested for DUI. However, when you have good representation, it is more likely that you may not face harsh immigration consequences. In case you are a non-immigrant with a Visa residing in Vista or the greater North County in California and you are facing DUI charges, we suggest you get in touch with attorneys from Vista DUI Attorney Law Firm. Our lawyers have profound experience in criminal defense and can handle any DUI case involving non-immigrant Visas.
An Overview of Immigration Laws
Before knowing how DUI charges can impact your immigration status, specifically your visa, you should understand what immigration law is all about. According to this law, being guilty of some crimes may result in deportation or inadmissibility of citizenship. Being inadmissible means you won’t be capable of successfully applying for a green card, to adjust your status, becoming a U.S citizen or reentering the country after you leave. There are two categories of crimes; those that will have you deported and those that will make you inadmissible.
Offenses that will make you deported are those that;
- Are felonies or serious felonies that have more than a one-year state prison sentence
- Relate to moral turpitude
- Are drug-related
Inadmissible offenses, on the other hand, involve the following;
- Two or more offenses which have 5 years or more prison time in total
- Offenses relating to moral turpitude
- They are offenses related to drugs
In rare circumstances, though very much possible, DUI is an offense that can make you both inadmissible and deported. Charges associated with DUI that can affect your rights to remain in the country or to be deported include;
- DUI of drugs
- DUI with a minor (below 14 years)
- DUI on a suspended driver’s license
- Multiple DUI convictions (second-offense, third-offense etc.)
When you get arrested for DUI, your photo, fingerprints and the arrest record are fed into the national database. Additionally, if you’re convicted of the same crime, records of your sentence are also entered into the database, whether you broke a federal or state law. These records can have a negative impact as time goes by even if they don’t immediately result in severe immigration consequences. This is because, during the application of new immigration benefits such as status adjustment, visa renewal, the start of the naturalization process, another admission into the United States, or petitioning for your relative’s immigration, such records are looked into. As such, it is important for non-immigrants to have a DUI attorney in order to avoid any DUI conviction record since such a record may deny the individual reentry, citizenship or it could lead to deportation.
Section 101a-48 of the Immigration and Nationality Act presents a wide definition of conviction. The definitions include a delayed guilt adjudication, a plea of no contest, an actual guilty plea or a situation in which any penalty imposed by the court has been enacted. A good DUI attorney who also understands immigration law may challenge all these definitions in specific circumstances. However, plea deals do not necessarily prevent severe immigration punishments.
Simple DUI Charges and Immigration Laws
A simple DUI offense, even if it resulted in demise or an injury is not considered a crime of moral turpitude. Therefore, such a crime cannot attract harsh immigration penalties. Moral turpitude crimes are those offenses that jiggle the conscience. They are crimes that are committed with a given intent or in a certain mental state. Simple DUI has the following elements;
- You had 0.08% BAC or more while driving
- You were driving while intoxicated with alcohol or
- You were driving while intoxicated with drugs
The most important factor the prosecutor needs to prove here is if you were under the influence. S/he doesn’t need to show if you were in a state of mind of breaking the law/injuring a person or the intent of doing so.
Possible Consequences for Simple DUI
Simple DUI can have a negative effect on a person’s immigration status in addition to criminal penalties of the crime. Though DUI is a serious crime in California, first-time lawbreakers are not punished harshly. The penalty imposed depends on the circumstances surrounding the case. The court also considers mitigating or aggravating factors, if any, before issuing a sentence.
Also, note that all foreign citizens with the status of being U.S citizens can also be affected by these consequences when arrested for DUI and not necessarily non-immigrants only. This means that the consequences apply to both non-immigrant and immigrant visa holders alike i.e. foreign students and workers, refugees, tourists, those with families, and any other foreign citizen. The consequences include;
- A 48-hours jail sentence
- A minimum of $390 and a maximum of $2,000 in fines
- Summary probation
- Enrollment to DUI school program
- Your driver’s license gets suspended
If there are aggravating factors, they will lead to a sentence enhancement. It is more likely that you will serve longer jail time, you will be highly fined and your driver’s license will be suspended for a longer time. Aggravating factors also impact negatively on your status as an immigrant. An experienced non-immigrant visa DUI attorney can help you to argue these aggravating factors so your sentence is not enhanced. Such aggravating factors include;
- DUI causing injury, death and/or property damage
- DUI at a higher speed than the recommended speed limit
- DUI with BAC of 0.15% or higher
- Failure to submit to chemical tests (blood, urine, and breath tests)
- DUI when below 18 years
- DUI on a suspended driver’s license
- DUI with a minor
Aggravating Factors and their Effect to Immigration Status
Most of the DUI convictions do not have an effect on your status as an immigrant but those with particular aggravating factors may. Here is how some aggravating factors can affect immigration status.
DUI on a Suspended License
Here, your mental state makes a difference than it is with simple DUI. Simple DUI does not require one to be in a certain mental state. On the other hand, with DUI on a revoked driver’s license, the driver knows that he or she is not permitted to drive yet they still do it anyway. So it is assumed that they understand their actions. The variation in the mental state makes driving on a revoked driver’s license a moral turpitude crime, which can cause severe immigration consequences, including both deportation and inadmissibility.
DUI of Drugs (DUID)
As earlier stated, crimes that could make you deported or inadmissible are drug-related. Therefore, in relation to immigration laws, DUID is a more serious crime than simple DUI, with its consequences being deportation and inadmissibility.
DUI with a Minor
A minor, here, is anyone below 14 years old. This offense has serious consequences on your status as an immigrant. You also risk facing additional charges of child endangerment as per Penal Code (PC) 273(a) of the state of California. This crime, just like driving on a suspended driver’s license, needs a specific mental state. In other words, the prosecutor has to prove that you were in the right mental state when committing the crime and you knew you were endangering the life of a child. The mental state aspect is what classifies this as a moral turpitude crime. Its consequences could involve inadmissibility and deportation in addition to other sentence enhancements.
DUI Causing Injury, Death or Damage to Property
This is charged as a felony in California. Due to the nature of the effects this offense has on others, that is, death, great bodily injury, property damage, there have been public concerns to rule DUI a ‘crime of violence.’ There have been cases of deportation proceedings being carried out even for lawful permanent citizens for committing DUI felonies causing death or injury of another person.
However, the Supreme Court of California finally ruled that DUI causing injury does not qualify to be a crime of violence since crimes of violence require a specific intent that is beyond the mere negligence that applies to DUI. Additionally, crimes of violence are characterized by the defendant’s use of physical force to injure others, which doesn’t apply to DUI crimes.
Multiple DUI Sentences and Immigration Laws
DUI penalties increase according to the number of DUI crimes you have committed within a period of 10 years. For instance, a first-offense DUI is not punished in the same way as a second-offense DUI. Therefore, several DUI convictions in a period of 10 years could make one of the offenses an inadmissible offense. In addition, if you have been found guilty of two or more crimes and their total sentence adds up to 5 years or more, you may be inadmissible. You don’t need to be convicted of the crimes simultaneously. Your third-offense DUI and your fourth-offense DUI sentences can be added up and in case the sentences total up to five years or more, the consequence is being ruled inadmissible.
Due to this, we recommend that you avoid having to serve a long prison time when convicted of DUI, especially if it is a fourth-offense DUI. A criminal attorney can negotiate your prison sentence so they can be reduced. This way, you get to maintain your immigration status.
DUI Convictions and How They Affect Naturalization
Naturalization is the procedure of acquiring a U.S Citizenship. Becoming a U.S citizen through naturalization can be affected by DUI offenses even if it is the first offense. It is on recorded how many people desire to become US citizens; thus, the requirements to qualify as one are somehow strict. First, you have to show a recommendable moral character as one step towards consideration. Moral character is determined by closely examining one’s actions in the past five years. If you have only one DUI conviction on your record, chances are that your naturalization process will not be compromised. However, one DUI conviction together with convictions of other offenses or any other proof of not so good a character could affect the naturalization process.
You will be denied a U.S citizenship if there is a DUI conviction on your record accompanied by aggravating factors. However, California Supreme Court has since ruled that an individual who is guilty of DUI but has completed the DUI school program, probation and any other requirements needed of him/her shouldn’t be denied naturalization due to the crime.
The New Policy of the State Department
The United States’ Department of state policy implemented a new policy in 2016 with respect to DUI arrests for people living in the country on a non-immigrant visa. This policy can have a drastic impact on one’s immigration status if they are arrested on DUI allegations. For a start, your visa may be revoked, a method referred to as prudential revocation. The visa is revoked on grounds of mental health or physical reasons. This is because the policy establishes a connection between an individual arrested for DUI allegations and an individual with mental health problems or physical-related issues. The policy applies when you get arrested and not when you are found guilty. This implies that if you are a non-immigrant then get arrested for DUI, your visa may be revoked even if you are innocent of the charges.
The good news is that the policy does not provide that one be deported if the visa is revoked. This means that your citizenship status will still be intact but the visa stamp becomes invalid. This is due to the fact that even though the DOS manages visa issuance, it is the U.S Customs and Border Patrol that decides legal entry into the country at an entry point. The penalty for violating the policy is not clear yet but what is clear is that persons affected with the policy need to do a visa re-application before they try to re-enter the U.S.
Denied Admission Due to a DUI Offense
When applying for any type of visa at a U.S embassy while abroad and you have a DUI felony, you may be needed to do a medical test. If the test results indicate that you should be classified as an alcohol addict, the physician has the authority to allow or deny you entry in the country. The CDC reviews the physician’s decision which is more unlikely to change the decision anyway. Thus, we recommend that you get the help of a skilled DUI/immigration attorney before taking the medical test. The attorney will help and make you ready to hand the physician the proof that you aren’t an alcoholic. Adjusting your status from a non-immigrant visa to an immigrant visa after you enter into the country can also be denied if you have been found guilty of a serious DUI offense, for example, DUI causing an injury or death. If the request to adjust your status is formally denied, you could face deportation.
Additionally, renewing a non-immigrant visa can also be problematic if you have been convicted of DUI. Renewal may be denied in case you have a conviction of DUI as a moral turpitude crime on your record.
Even though deportation is not supposed to happen after visa revocation, there have been reports of such cases in Vista and the North County area. There are even cases of some citizens receiving letters from embassies incorrectly stating that the person’s status in the country is revoked. This is probably due to the complexity of the process and how confusing it gets sometimes. To prevent such cases from happening, you need a good DUI attorney who knows what they are dealing with to defend your rights so that you enjoy the privileges of staying in the country.
Holders of J-1 and J-2 visas may have them prudentially revoked if arrested for DUI. However, there haven’t been cases of other types of visas being revoked other than J-1 but this could change as time progresses. Note that you are supposed to get a notification through email or through any other way in case your visa is prudentially revoked due to a DUI arrest. This means that if you can’t be contacted or if any other mistake arises, your visa may be revoked without your knowledge. This affects quite a number of people because if you know your visa is in the process of revocation you would probably avoid traveling abroad to prevent further problems. However, those who do not know and travel, learn of it when they are already abroad and have a difficult time re-entering the country.
Finding a Non-Immigrant Visa DUI Criminal Attorney Near me
The Vista DUI Attorney Law Firm has an outstanding record of providing services that help each client at individual levels. We set proper strategies to fight DUI charges and also help negotiate alternative resolutions. If you or your loved one is living in the U.S on a non-immigrant visa and has been arrested on DUI allegations, don’t hesitate to reach us at 760-691-1540. We have served residents of Vista and all over North County for many years with the utmost professionalism and our clients have continued to trust in our services. Give our Vista DUI Lawyer a call Today!