Introduction to How a DUI Affects Your Immigration Status?
A DUI charge on your criminal record is going to have long-term ramifications for anyone. The severity of those ramifications could vary depending on who you are and what the details of that DUI charge were. When it comes to how a DUI will affect immigration status of an individual, the consequences can be incredibly severe. Whether you already possess a green card in the United States or are trying to not be deported from the country for being here unlawfully, the consequences of a DUI could result in deportation from the United States.
Types of DUIs
First off, what exactly qualifies as a DUI in the United States? DUI stands for “driving while under the influence”.
[i] Typically this means under the influence of alcohol, but this charge can also include drugs, which includes both legal and illegal drugs.
[ii] There are many classifications of DUIs in Arizona. To begin with, a standard DUI will result in a blood alcohol concentration (BAC) of 0.08% or more for standard vehicles.
[iii] The BAC level must not exceed 0.04% if driving a commercial vehicle.
[iv] And for underage drinkers, the BAC level must be 0.00% or that minor can be find with an underage DUI.
[v] An extreme DUI has the BAC level of 0.15% or higher.
[vi]There is also a classification of DUI called the aggravated DUI.
An aggravated DUI in Arizona can arise from three separate types of situations. The first way a DUI can become aggravated is if the DUI has been committed while the driver’s license has been revoked or suspended.
[vii] The next way is if the DUI was the third DUI of the driver within five years.
[viii] Finally, the last way is if the DUI was committed while a person under the age of fifteen years was in the vehicle with the driver.
[ix] An aggravated DUI is the type of DUI that will get immigrants into the most amount of trouble with federal immigration laws. Not only will an immigrant face possible deportation if they receive an aggravated DUI, but they can face range of fees and jail time which would be determined by the judge.
[x] For more information on how a DUI affects your immigration status see here.
DUI & Immigration Consequences
The process to immigrate to the United States has many routes and phases and person can take and go through. One of those paths is a lawful route to obtain a green card. A green card holder is someone who has been authorized to live and work in the United States on a permanent basis.
[xi] A more official term than green card holder is permanent resident.[xii] There are a number of ways that can result in an individual being eligible for permanent residency in the United States.
[xiii] Regardless of how you receive your permanent residency, if you receive an aggravated DUI in the United States – the consequences will remain the same, possible deportation. It is the responsibility of the permanent resident to not commit any actions that would result in the person becoming removable under federal immigration law.
So, what crimes will render a person removable under federal immigration law? The most common reason why immigrants become removable is because they have committed a crime.
[xv] The crime must be either a crime against moral turpitude or an aggregated felony.
[xvi] Now a crime against moral turpitude has not been well defined with federal immigration law, but there has been some guidance provided that helps immigrants and judges alike.
[xvii] These crimes against moral turpitude will commonly include fraud, larceny, or intent to harm a person.[xviii] Key elements among these crimes involve dishonesty. An aggravated DUI is another crime that will found to be against moral turpitude and thus make a person deportable.
Now, if a permanent resident is found to have committed an aggravated DUI through any of the above listed ways, then that permanent resident could be placed into removal proceedings.
[xix] Just like any crime, prosecution of that crime is discretionary. Placing an immigrant, legal or illegal, into removal proceedings is also a discretionary process. Removal proceedings take place in federal immigration court. In the instance where a permanent resident committed an aggravated DUI and was placed into removal proceedings, the judge will review the circumstances in which the aggravated DUI was committed and decide whether or not to deport that permanent resident.
[xx] The judge will not just look at the DUI that was committed during the deportation proceeding though.
[xxi] The judge will take many other factors into consideration, such as how long the immigrant has been in the United States, their ties to their local community, and the good moral character of that individual.
[xxii] Another way for an immigrant to become deportable is for that individual to be in the United States unlawfully. The most common term for this type of immigrant is the illegal immigrant or even illegal alien. Being in this country illegally is typically automatic grounds for deportation. The illegal immigrant will still need to go through a removal proceeding with the immigration court, and it is possible for the judge to determine that despite their illegal status here, the illegal immigrant may remain in the United States.[xxiii] In order for a judge to determine that an illegal immigrant may remain in the United States, despite their unlawful presence here, the illegal immigrant must have a pretty clean criminal record.[xxiv]
Now, because the illegal immigrant is in the United States unlawfully, any variance of DUI is going to place a large burden on an illegal immigrant who is going through a removal proceeding.[xxv] Any type of DUI – standard, extreme, or aggravated, is going to make the judge question whether or not the illegal immigrant has a good moral character and worthy or remaining in the United States. Even though any type of DUI can place an individual into removal proceedings, the circumstances of the DUI will play heavily into the decision of the judge. If an illegal immigrant receives an aggravated DUI, the ways in which the DUI became aggravated will greatly affect the moral character of the illegal immigrant. As state previously, the three ways in which you can receive an aggravated DUI is by receiving a DUI while driving on a revoked or suspended license, if this DUI was the third in five years, or if the DUI was received when a child fifteen years or younger was in the car.[xxvi]
The most common way for an illegal immigrant to receive an aggravated DUI is through the first method: while driving on a suspended or revoked license. Currently in Arizona, the only illegal immigrants who may lawfully receive a driver’s license are the youth group called The Dreamers.[xxvii] The Dreamers are youths in Arizona who are illegal immigrants that were brought to the United States as young children.[xxviii] These individuals are lawfully able to obtain driver’s license after they go through the process of becoming classified as this type of illegal immigrant. This process is known as the deferred action for childhood arrivals. Now, for all of the other millions of illegal immigrants in the United States, they are not able to obtain a lawful driver’s license and yet millions of those individuals are out on the roads driving every day.[xxix] So if one of these millions of drivers receives a DUI, they are not only subject to fines and punishment for the DUI and for driving without a lawful driver’s license, they will likely be put into removal proceedings to be deported from the United States.
So -how can an immigrant avoid facing removal proceedings for a DUI offense in Arizona? By simply not ever drinking and driving. Alcohol affects every individual differently. While on person may have eight drinks without feeling impaired, another person may have a single drink and be unable to drive. It is even possible for an individual to have a BAC level above the legal limit of 0.08% and still not feel as if they are intoxicated. Even if you are this individual, it does not mean that you are capable of driving just because you do not feel as though your motor skills have been compromised. It is very common for individuals to drink and not notice their motor skills have been compromised – until it is too late.[xxx]
But, what do you do if you are arrested for a DUI and your immigration status in the United States is compromised? For starters, you can request that the judge not elevate the DUI to an aggravated offense. This could greatly help the permanent residents of the United States, but it is not a very likely scenario. Since, a standard DUI will not result in deportation for a permanent resident, asking the judge to consider that option would not be a terrible plan. From there, it will be up to the immigration and criminal defense attorneys on your case to make the next play for your case. On the other hand, for those who are here illegally, receiving a DUI or committing any number of crimes will have a ripple affect of consequences. You will not only be put on the federal governments radar for being in the United States illegally, you will be liable for fines and punishment for the crimes that you commit. Just because you are not a citizen or permanent resident of the United States does not mean you will not be liable for your actions. And also, just because you have a green card to be in the United States that does not shield you from crimes you commit in this country. Every individual in the United States will be responsible for his or her actions, and some will have more consequences than others.
[i] See Will a DUI Affect Your Permanent Reident Status? All Law. (Accessed April 8, 2016). http://www.alllaw.com/articles/nolo/us-immigration/dui-affect-permanent-resident-status-green-card.html
[iii] See DUI & DWI in Arizona. Department of Motor Vehicles. (Accessed April 5, 2016). http://www.dmv.org/az-arizona/automotive-law/dui.php
[vii] See Arizona DUI Fines and Sentencing. Free Advice Legal. (Accessed April 4, 2016). http://criminal-law.freeadvice.com/criminal-law/drunk_driving/arizona-dui-law.htm
[xi] See Green Card. Official Website of the Department of Homeland Security. (Accessed April 8, 2016). https://www.uscis.gov/greencard
[xiv] See Rights and Responsibilities of a Green Card Holder (Permanent Resident). Official Website of the Department of Homeland Security. (April 8, 2016). https://www.uscis.gov/green-card/after-green-card-granted/rights-and-responsibilities-permanent-resident/rights-and-responsibilities-green-card-holder-permanent-resident
[xv] See Crimes That Will Make an Immigrant Deportable. NOLO Legal Encyclopedia (Accessed April 7, 2016). http://www.nolo.com/legal-encyclopedia/crimes-that-will-make-immigrant-deportable.html
[xix] See Will a DUI Affect Your Permanent Reident Status? All Law. (Accessed April 8, 2016). http://www.alllaw.com/articles/nolo/us-immigration/dui-affect-permanent-resident-status-green-card.html
[xxii] See Overview of U.S. Deportation/Removal Proceeding. All Law. (Accessed April 7, 2016). http://www.alllaw.com/articles/nolo/us-immigration/deportation-removal-proceedings.html
[xxiii] See Overview of U.S. Deportation/Removal Proceeding. All Law. (Accessed April 7, 2016). http://www.alllaw.com/articles/nolo/us-immigration/deportation-removal-proceedings.html
[xxvi] See Will a DUI Affect Your Permanent Reident Status? All Law. (Accessed April 8, 2016). http://www.alllaw.com/articles/nolo/us-immigration/dui-affect-permanent-resident-status-green-card.html
[xxvii] See It’s Permanent, “Dreamers” Can Keep Licenses. AZ Central News. (Published January 23, 2015). http://www.azcentral.com/story/news/politics/immigration/2015/01/22/judge-blocks-arizona-driver-license-ban-dreamers-brewer/22190227/
[xxix] See Some Unlicensed Drivers Risk More Than a Fine. New York Times. (Published December 09, 2010). http://www.nytimes.com/2010/12/10/us/10license.html?_r=0
[xxx] See The Effects of Alcohol on Motor Skills. Narconon Reviews. (Published February 13,2013). https://narcononreviews.wordpress.com/2013/02/13/narconon-reviews-the-effects-of-alcohol-on-motor-skills/