U.S. On A Non-Immigrant Visa DUI Arrest

Before providing ways that a DUI charge can affect you as a non-citizen, we will first provide you information to give you a general understanding with immigration laws that are relevant to your situation.

It is important that you understand that a “non-citizen” being convicted of specific crimes may lead to deportation and/ or inadmissibility into the United States. Deportation is when an individual is removed from the U.S. To be inadmissible into the U.S. means that an individual will be prohibited from becoming a U.S. citizen, receive a green card; apply for an adjustment of status, or from reentering the U.S. Some offenses will classify an individual from deportable and others will deem the individual inadmissible.

The crimes that will classify an individual as “deportable” have the following characteristics:

• Most will be felonies, or aggravated felonies that carry a prison sentence of 1 year or more;
• The crimes will be characterized as crimes involving moral turpitude; and/ or
• Drug-related crimes

The crimes that will classify an individual as “inadmissible” have the following characteristics:

• 2 or more crimes that carry a combined sentence of 5 or more years; or
• The crimes will be characterized as crimes involving moral turpitude; and/ or
• Crimes that are drug-related.

Sometimes, a DUI case can result in a conviction that is determined to be both a “deportable” and “inadmissible” offense.

Often, a regular DUI conviction does not lead to a person facing immigration punishments. Regular DUIs, even those that involve injury or death are not considered crimes of moral turpitude. Crimes of moral turpitude are crimes that shake the conscience. The most crucial aspect of crimes that involve moral turpitude is if the commission of the crime requires a specific intent or state of mind. Look at the elements that comprise a regular DUI:

1. Driver has a blood alcohol concentration (BAC) of .08% or higher when operating the motor vehicle;
2. The driver operated the vehicle under the influence of alcohol; or
3. The driver operated the vehicle under the influence of drugs.

Essentially, a DUI conviction requires a defendant to have been operating the motor vehicle, and did so under the influence. A person does not require the mental state of intending to break the law or cause injury to others. Thus, a DUI offense is not considered a crime of moral turpitude.

A DUI conviction will not only lead to adversely affect your immigration status, but it will result in you facing criminal punishments for the DUI offense itself.

California takes DUI offenses very seriously, however, it imposes less severe punishments for first time offenders. The punishment one faces for a first time DUI is determined by the individual case, but there are various aggravating and mitigating factors that are considered when the court decides your punishment.

A first time DUI conviction, absent death or injury to another, can usually carry the following penalties:

• A maximum sentence to 2 days in jail;
• A fine, anywhere from $390 to $2,000;
• Completing a court mandated DUI education program;
• Probation; and/ or
• Driver’s license suspension.

Your penalty can be enhanced if your case involves any aggravating factors. Aggravating factors that can be considered in determining your punishment are:

• Getting arrested for DUI while on a suspended license;
• Getting arrested for DUI with a child under the age of 14 in the car;
• DUI offense resulting in property damage or injury to another person;
• Driving at an excessive speed at the time of your DUI arrest;
• DUI arrest where the driver has a BAC of .15% or above;
• Refusing to take a blood or breath test; or
• Being under the age of 18 at the time of your arrest.

A DUI present with one or some of the aggravating factors present can result in facing more serious punishments. These punishments can consist of higher fines, increased jail time, and a suspended license for a longer period of time. These aggravating factors can also affect your immigration status, as will be discussed below. The aggravated sentencing can affect your professional and personal life. It is important to hire a skilled attorney if you are facing these charges. The lawyers at the Orange County DUI Attorney Law Firm have the experience that enables them to assess your case, and determine what to do in order to ensure we get you the best possible result. Our attorneys will devote themselves to defend you during every part of your case. If you are facing a DUI charge and your case involves any of the aforementioned aggravating factors, we encourage you to contact our law firm to schedule a FREE consultation.

Many DUI convictions will not affect your immigration status, but DUI convictions with specific aggravating factors could.

It is important to understand the difference is between an individual’s state of mind in a regular DUI and a DUI with a suspended license. As previously discussed, a regular DUI requires no specific mental state. However, an individual who drives on a suspended license knows that they are unauthorized to drive, but choose to do so under the influence of alcohol or drugs anyways. The individual knows that driving under the influence without a license is unlawful but it does not stop him or her. This difference in the individual’s state of mind makes a DUI on a suspended license a crime of moral turpitude, and can result in serious immigration consequences.

Both deportable and inadmissible crimes include drug-related crimes. Thus, when dealing with immigration laws, a DUID is viewed more seriously than a regular DUI.

A DUI where there is a passenger under the age of 14 can carry consequences regarding your immigration status. This type of DUI can also carry an additional crime under California Penal Code 273(a), which is a charge of child endangerment.

Similar to DUI with a suspended license, this charge also requires a specific state of mind. In order to be convicted of this charge, a person must know that his or her actions are exposing the child to undue risk. This state of mind is what characterizes this charge as a crime of moral turpitude.

You might already know that multiple DUI convictions within a 10-year period will cause the punishments of each subsequent DUI to be more severe than the last. For this reason, an individual being convicted of multiple DUIs within a 10-year period can lead one of those convictions to be considered an inadmissible crime by the court. As previously mentioned, if you are convicted of numerous crimes that carry a combined sentence of 5 years in prison, it may leave you susceptible to being considered inadmissible. These crimes do not have to be charged simultaneously, and a prison sentence from a second DUI can be combined with a third DUI, and if the combined sentences amount to 5 or more years, you will be considered inadmissible.

This should lead you to wanting to avoid any long prison sentences for any DUI conviction, especially if you are convicted of a fourth DUI, which is a felony DUI. No matter what number DUI charge you are facing, it is important that you consult with an attorney as soon as possible after being charged. An experienced attorney will provide you with a service that will increase your chances at avoiding severe penalties and decreasing the impact the DUI charge will have on your immigration status.

The process of becoming a United States citizen is called naturalization. Your ability to naturalize could be impacted by a regular, first offense DUI. Achieving citizenship of the United States is highly desired and is the reason that the requirements qualifying an individual to achieve it are very strict. The naturalization process requires an individual to show that they have good moral character. To determine an individual’s moral character, the assessors in the naturalization process will closely examine the individual’s actions within the previous 5 years. If the individual has a single DUI on his or her record, the individual’s chance of being naturalized is not ruined, but a DUI conviction coupled with other crimes or evidence of poor character may prevent them from becoming naturalized.

A policy implemented by the U.S. Department of State in 2016 may dramatically impact your immigration status if you are arrested for DUI and are in the U.S. on a nonimmigrant visa.

The revocation of a visa, known as a prudential revocation, is a way that a valid visa can be revoked due to physical or mental health-related reasons. The new policy does not change the law but it does change the State Department’s policy in dealing with DUI arrests. Stated in other words, the Department of State implemented a new policy that establishes a relationship between a person suspected of DUI, and that person having physical or mental-health related problems. Unfortunately, the new policy is initiated when an individual is arrested, NOT when they are convicted. This means that a person arrested for DUI can have his or her visa revoked without being proved guilty of DUI.

Fortunately, you have options if you find yourself in this situation. This policy may result in your visa being revoked. However, your visa being revoked does not mean that you will be kicked out of the United States. The consequence of

violating this new policy is still unclear. However, we know that individuals affected by the new policy are required to re-apply for a visa before they attempt to enter the United States again.

A DUI arrest is a traumatic situation for anyone. This situation can become even more stressful if you are in the United States on a nonimmigrant visa. Our firm has three decades of experience and has handled over 11,000 DUI cases. Our firm prides itself in our ability to provide our clients with the highest caliber representation available. We do not only handle DUI cases, but can also handle associated-immigration matters. We work with immigration attorneys who can help our clients navigate any immigration issues.

If you are in the U.S. on a nonimmigrant visa and have been arrested for DUI, we highly recommend that you call our office today. We will discuss your options and build a defense strategy that best fits your needs. When you call, make sure to inform us that you are in the U.S. on a nonimmigrant visa, so that we can handle your case with the specificity that it deserves.