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

Before discussing the specifics of how a DUI charge can affect your immigration status, it is important to have a general understanding of the relevant immigration laws.

The main point to understand, is that a “non-citizen” being convicted of certain crimes can lead to inadmissibility into the United States, and/or Deportation.  To be deported, is to be removed from the U.S.  Alternatively, to be inadmissible means that the person will not be able to become a citizen of the U.S., apply for a green card, apply for an “adjustment of status”, or re-enter the U.S. after leaving.  Certain offenses will render an individual “deportable”, and certain offenses will render an individual “inadmissible”. 

Most “Deportable” crimes will have the following characteristics:

• They will be felonies, or aggravated felonies, and carry a sentence of greater than one (1) year in state prison;
• They will be crimes classified as “crimes of moral turpitude”; and/or
• They will be drug-related crimes.

Most “Inadmissible” crimes will have the following characteristics:

• Two (2) or more crimes, for which the sentences, when added together is five (5) or more years; or
• They will be crimes classified as “crimes of moral turpitude”; and/or
• They will be drug-related crimes.

In some cases a DUI conviction can be considered both a “deportable” offense and an “inadmissible” offense.  

Usually, a simple DUI conviction will not lead to immigration consequences.  This is true because even if a death or injury results, these crimes will not typically be considered “crimes of moral turpitude”.  Crimes of moral turpitude are those that “shock the conscious”.  In determining whether a given crime falls into this category, the most crucial factor will be whether commission of the crime requires some “specific intent” or “mental state”.  Consider the elements for the crime of DUI:

1. You had a blood alcohol concentration (BAC) of at least .08% while operating a motor vehicle;
2. You were under the influence of alcohol while operating a motor vehicle; or
3. You were under the influence of drugs while operating a motor vehicle.

Basically, to be convicted of DUI, you have to be driving and you have to be under the influence; that’s it.  You don’t have to be intending to break the law, or intending to injure anyone.  As such, a DUI will usually not be a crime of moral turpitude.

In addition to the effect your DUI could have on your immigration status, you will also be facing a number of penalties for the DUI itself. 

While any DUI arrest is taken seriously in California, first time offenders typically face penalties that are less severe.  Even so, a number of aggravating and mitigating factors will be considered in determining your penalty, and penalties are always issued on a case by case basis. 

For a first time DUI conviction that does not involve death or bodily injury, you can expect a penalty along the following lines:

• A jail sentence of up to two (2) days;
• A monetary fine ranging between $390 and $2,000;
• Successful Completion of a DUI education program;
• Probation; and/or
• Suspension of your driver’s license.

If any aggravating factors exist, the penalty you receive will likely be enhanced.  Some of the factors that are considered on a case by case basis, include:

• Diving on a suspended license at the time of the DUI;
• Driving with a passenger under the age of 14 at the time of the DUI;
• Causing personal injury or property damage as a result of the DUI;
• Driving at an excessive or reckless speed at the time of the DUI;
• Having a BAC of .15% or higher at the time of the DUI;
• Refusing to submit to a blood or breath test after your DUI arrest; or
• Receiving a DUI while under the age of 18.

Being arrested for DUI with some or even one of these aggravating factors can lead to much more severe penalties.  You will likely face increased fines, more potential jail time, and a longer license suspension.  Further, as discussed below, some of these aggravating factors will also have an impact on your immigration status.  As you can see, these additional penalties can have a significant impact on your personal life and your career.  Therefore, choosing the right attorney to represent you can play a huge role in ensuring you don’t receive a more severe penalty than you deserve.  Our lawyers at the San Diego DUI Attorney have the capability to properly evaluate your case, and to help you select the proper course of action.  We will aggressively defend your rights at all stages of your case.  If you have been arrested for a DUI and any of these aggravating factors are present in your case, we strongly advise that you contact our office as soon as possible.   

Even though most DUI convictions will not impact your immigration status, convictions that involve certain aggravating factors might.

Consider the difference in the state of mind required for a simple DUI and for a DUI with a suspended license.  As noted above, a simple DUI essentially requires no specific state of mind.  However, one who drives on a suspended license presumably knows what they are doing, and intends to drive when they are not legally permitted to do so.  As such, a DUI with a suspended license is a crime of moral turpitude, and can carry immigration consequences. 

Notice that both “deportable” crimes and “inadmissible” crimes contain drug-related offenses.  As such, with respect to immigration laws, a DUID is more serious that a DUI involving alcohol.    

Driving under the influence with a passenger under the age of 14 can also lead to immigration consequences, because if you do so, you can also be convicted of the separate crime of Child Endangerment (California Penal Code 273(a)). 

As with driving on a suspended license, Child Endangerment does require a certain mental state.  To be convicted, you must knowingly be putting the child in danger.  As such, it is classified as a crime involving moral turpitude. 

As you may know, each DUI offense you are convicted of within a ten (10) year period will carry a more severe penalty than the preceding DUI offense.  As such, multiple DUI convictions within a ten (10) year period could lead to one of them being considered an “inadmissible” crime.  Remember that if you are convicted multiple crimes and the sentences add up to five (5) or more years in prison, you may become “inadmissible”.  Note that the crimes do not have to be charged at the same time.  In other words, the prison sentence from your third DUI could be added to the prison sentence from your fourth DUI; if when added together the sentence is five (5) years or longer, you will be considered “inadmissible”.   

As such, you will want to avoid long prison sentences for your DUI convictions.  Specifically, if you are convicted of a fourth or felony DUI.  If you are charged with any DUI, it is strongly recommended that you consult with an attorney immediately.  By doing so, it will give you your best shot at having the penalties you face reduced and preserving your immigration status.  

Naturalization is the process of becoming a United States citizen.  Even if you are only charged with a simple first time DUI, your ability to naturalize could be affected.  Becoming a United States citizen is highly sought after.  Therefore, the requirements for doing so are strict.  Part of the naturalization process requires a showing of “good moral character”.  In determining character, all conduct within the applicant’s previous five (5) years will be considered.  It is unlikely that a single DUI would result in a failure of showing good moral character but if there are other evidences of bad character it could affect your Naturalization. 

If you are in the United States on a nonimmigrant visa, a new 2016 U.S. Department of State policy regarding DUI arrests may have a dramatic impact in your immigration status. 

The visa revocation, known as a “prudential revocation,” is a method in which an otherwise valid visa may be revoked on physical or mental health-related grounds.  The 2016 change is not a change in the law; rather, it is in the Department of State’s policy regarding DUI arrests.  In other words, the Department of State has adopted a new policy that creates a correlation between individuals suspected of DUI, and having physical or mental health related issues.  To make matters worse, this new policy is triggered upon an arrest, NOT a conviction.  In other words, you can be completely innocent of a DUI yet still have your nonimmigrant visa revoked.

Thankfully, you are not without recourse.  While this new policy can result in the revocation of your visa, it does not necessarily result in your removal from the United States.  The specific consequence of this policy is still unclear but this much is known: clients affected by this policy will need to re-apply for a visa before their next attempted entry into the United States. 

Suffering a DUI arrest can be traumatic for anyone.  The negative impact increases exponentially when you are in the U.S. on a nonimmigrant visa.  As a firm with nearly 30 years of experience and over 14,000 cases handled, we take pride in our ability to offer the highest level of representation to our clients.  This representation is not only limited to the DUI case, but also associated immigration matters.  Our firm works closely with immigration attorneys of counsel, who are able to help guide our clients through these immigration issues.