DUI AND IMMIGRATION

By: Norton Tooby

Posted by:  Norka M. Schell

DUI and Immigration

 

Driving under the influence cases are very common, and fortunately do not in general trigger adverse immigration consequences. Assuming the case involves driving under the influence of alcohol, as opposed to drugs, a simple DUI conviction does not trigger deportation or inadmissibility. If the person is on probation for this offense, or any other, he or she is temporarily ineligible to naturalize until probation has ended. This type of conviction can constitute a moral turpitude conviction only if the offense includes not only DUI elements but also elements of knowingly driving on a suspended license. It is no longer considered to be a crime of violence aggravated felony, regardless of sentence. It can constitute a negative discretionary factor, and thus contribute to denial of discretionary immigration benefits. Aggravated DUI convictions and health-related issues are covered below.

 

Three aggravated types of driving under the influence convictions are driving under the influence of drugs, multiple DUI convictions (i.e., DUI with one or more prior DUI convictions), and DUI causing injury.

 

DUI and Drugs

 

Driving under the influence of drugs can sometimes constitute a controlled substances conviction, which can trigger deportation, inadmissibility, and bar some forms of relief from removal.  This is not always the case.  First, the state definition of controlled substances may differ from the federal list.  Only offenses involving controlled substances on the federal list will trigger adverse immigration consequences.  State convictions that definitely involve (or may involve) a drug that is on the state list but not on the federal list will generally not be considered a controlled substances conviction under immigration law.  Second, some states, such as California, may prohibit driving under the influence of “drugs” that are not even on the state controlled substances list.  See California Vehicle Code § 312 (“drugs” for purposes of driving under the influence of drugs includes any substance at all that may adversely affect the ability to drive, even if it is not on the state controlled substances list).  The record of conviction must be consulted to see whether it identifies the specific substance involved, and that substance must be on the federal list of controlled substances before the state conviction can constitute a controlled substances conviction under immigration law.

 

Multiple DUI Convictions

 

Since one DUI conviction (not involving a federal controlled substance) does not trigger adverse immigration consequences. Multiple convictions of simple DUI alcohol do not do so either.  Therefore, a DUI with one or more prior DUI convictions do not trigger adverse immigration consequences.

 

DUI with Injury

 

A conviction of DUI causing injury does not constitute a crime of violence aggravated felony or crime involving moral turpitude, and so does not directly cause adverse immigration consequences.  This type of conviction, however, may be considered as evidence that the person has a dangerous health condition that may constitute a medical ground of inadmissibility.  See “Health-Related DUI Issues,” below.

 

Being a habitual drunkard constitutes a statutory bar to showing Good Moral Character under INA § 101(f)(1).  Multiple DUI convictions can contribute to finding a noncitizen is a habitual drunkard.  Good moral character is a prerequisite to obtaining many different immigration benefits, such as naturalized U.S. citizenship.

 

Driving under the influence convictions can contribute to a finding of inadmissibility based on a physical or mental disorder – alcoholism – if it has caused a threat to the property, safety, or welfare of the alien or others under INA § 212(a)(1)(A)(iii). Simple DUI convictions generally do not cause a problem, but DUI with injury or other evidence a DUI has caused harm can trigger inadmissibility under this ground.

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