Orange County Criminal Defense

Immigration Consequences for DUI Arrest and Conviction

Immigration reform is a hot-button topic right now and its more important than ever for defendants to be aware of the immigration consequences of certain crimes.  One of the most common crimes facing both immigrants and citizens is DUI.  This article provides a brief explanation of the possible immigration consequences for DUI arrests and convictions.  Please contact our office for further assistance.

There are two types of immigration consequences – inadmissibility and deportation.  As far as inadmissibility is concerned, a DUI conviction does not automatically make a non-citizen inadmissible.  However, any person who suffers from a disorder, including alcoholism, is inadmissible.  This issue becomes apparent in applications for permanent residency.  Any applicant with a single DUI arrest within the last 5 years, or at least two arrests in the last 10 years, will be referred to a panel physician to determine whether the person is an alcoholic.  This referral will occur based on the arrest alone – a conviction is not required.

Drug-DUIs have different issues.  A person becomes inadmissible if convicted of a crime involving a federally-defined controlled substance.  Technically, the federal immigration courts cannot use California drug-DUI convictions as a a basis for inadmissibility or deportation because the term “drug” in California statutes covers more that what is unlawful under the federal standard.  Drug-DUI convictions can lead the government to investigate whether the applicant is a current drug addict or abuser, which would lead to inadmissibility if the drug was on the federal list of controlled substances and was not medically prescribed to the applicant.  However, applicants should never admit to any immigration officer that they possessed any illegal federal controlled substance because such an admission can be used against them in immigration proceedings even if the conviction can’t be.

Many types of immigration relief, including naturalization for citizenship, require Good Moral Character.  A DUI conviction does not automatically eliminate Good Moral Character (GMC), but GMC is barred by the following:

  1. Habitual drunkard.  A person with 2+ DUI convictions on their record may be considered a habitual drunkard and prevented from establishing GMC.
  2. 5 years of sentence.  A person with 2+ convictions of any type, including DUIs, where their total sentence is 5+ years, including suspended sentences, is barred from GMC.
  3. Incarcerated for 180+ days.  Any person incarcerated for 180+ days during the time period required to show GMC is barred from proving GMC.  This applies to all confinements, including DUIs.  The actual period of confinement, and not the official sentence, controls.
  4. On probation or parole.  This is not a bar to GMC but anybody on probation or parole cannot apply for citizenship.

Other issues:

  1. DACA.  A misdemeanor DUI conviction is considered a “significant misdemeanor” and therefore bars DACA.  However, an expungement may help.  Note that expungements usually do not provide any immigration relief except for DACA applications.  FYI – a wet & reckless conviction should be ok for DACA purposes.
  2. DUI arrest leads to revocation of visa.  Immigrants here on F-1 or H-1 visas can have their visas revoked simply based on a DUI charge – even without a DUI conviction.  The consulate may send a letter to the defendant requiring them to return home but defendants should NOT return home without first speaking to an experienced immigration attorney.  (Our office can put you in touch with such an attorney).

DUIs do not often result in deportation but one area where a DUI conviction could lead to deportation is Vehicle Code section 23572 – the enhancement for having a child in the car during a DUI.

Again, this article provides an overview of the issues and doesn’t contain all the possible consequences of a DUI arrest or conviction.  If you have more questions about DUIs or immigration, visit our website or call our toll free number (877-RIGHT-14) for a free consultation.

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