The dangers of drunken driving are obvious. This article is not about the moral, criminal, or insurance consequences of drunken driving. Rather, in this article, I will discuss the dangers of a drunk driving conviction for non-citizens in the United States because there are bigger, and often misunderstood, consequences for these individuals.

In addition to the possibility of losing driving privileges and facing higher insurance premiums, drunken driving convictions can affect non-citizens in several grave ways. Depending on the specific State statutes, in addition to criminal charges and convictions, drunken driving convictions can be determined by BCIS as a "crime involving moral turpitude" and a "crime of violence" under present US immigration laws. Such a conviction can lead to inadmissibility to or deportation from the U.S., denial of adjustment during the green card process, or a finding of bad moral character at a naturalization interview.

Does that mean with one DUI conviction, the alien resident can be sent back from the airport on the way back from an overseas trip?; that the alien’s visa application at the U.S. Consulate abroad will be rejected?; that the alien’s application to change status in the U.S. will be denied?; or that the Immigration officials will come to the alien’s house and deport him/her? We get many inquiries like the above. Such fear is unsubstantiated, although rational in the current environment. It takes more than one minor misdemeanor to have immigration consequences. Through this article, I hope to dispel such unsubstantiated fear and at the same time warn the readers against any future reckless behavior.

Crime Involving Moral Turpitude (CIMT)

Under the U.S. immigration laws, a "crime involving moral turpitude" (or the admission of the acts that constitute such a crime) is a ground for inadmissibility to the United States and CAN RESULT IN deportation from the United States.

When do drunken driving convictions fall under the CIMT category? Generally, in order to involve “moral turpitude”, a crime must have an intent requirement. Clear examples are murder and theft. In contrast, certain other crimes do not have an intent requirement. For example, as defined in most State laws, DWI (driving while intoxicated) and DUI (driving under the influence) mean that a person was driving with a certain blood level of alcohol or other intoxicating substance above that legally permissible under law. Usually, there is no reference to intent. That means, one does not have to have intended to get the car and drive drunk (and cause an accident). The mere fact of being drunk is enough.

As such, an ordinary DUI conviction is not considered a CIMT unless it is combined with an aggravating factor. For example, an alien’s DUI conviction was decided to involve moral turpitude because the alien was found to have the aggravating factor of operating the vehicle following the suspension of his license. The aggravating factor was that the offender knowingly drove with a suspended license.

Immigration/Visa Applications

Another inquiry we get related to DUI and/or other criminal conduct or convictions is whether the applicant should state an arrest, citation or conviction on the immigration/visa forms, even if minor ones. The applicant must be truthful in all these applications because lying in writing on BCIS forms, to immigration on entry or to a U.S. consulate officer can have even bigger consequences than what one is lying about! Remember a simple DUI conviction by itself would not result in a denial of an immigration benefit, but lying about it on one’s application can and would bring up a fraud or misrepresentation charge and can create a permanent bar to reentry, often without waiver possibilities.

Crime of Violence

As I have stated, even if the DUI conviction or settlement or fine did not involve a crime involving moral turpitude, it could still have serious immigration consequences if that conviction is determined to be an “aggravated felony”. Aggravated felonies, generally violent or other specified crimes for which the wrongdoer can be sentenced for one year or more, can lead to removal by BCIS and result in a 20-year bar to re-entry afterwards.

Some readers might wonder how a DUI conviction can be an aggravated felony. In an attempt to crack down on criminals, many states now have enhancing provisions, under which a second or third simple DUI conviction may result in a sentence of more than 365 days imprisonment and triggering this serious immigration enforcement mechanism.

It does not take much these days of harsh criminal penalties for multiple, even minor, convictions to build up and all of a sudden one finds severe immigration consequences. The fact that one has been a long term resident, has American citizen children, and been a productive member of the community may not serve as an automatic waiver. For this reason, it is advisable for permanent residents to become naturalized as soon as possible in order to avoid additional immigration consequences.

Citizenship

Even if an alien is able to avoid inadmissibility or removal resulting from DUI convictions, even one such conviction still can affect the alien’s naturalization process. The BCIS may consider any criminal conviction in making a determination regarding good moral character for purposes of an application for naturalization.

In this regard, one must carefully disclose all previous arrests and convictions with an immigration attorney before applying for citizenship. Although one DUI would not automatically disqualify the applicant, one must disclose it and have completed the probation before filing a citizenship application. Also, several DUI convictions can render the applicant a habitual drunkard and result in inadmissibility, and even removal.

Conclusion

As stated, the immigration consequences of a DUI conviction can be disastrous for non- citizens. If charged, it would be wise to consult with an experienced criminal attorney before pleading guilty even to a lesser offense on a DUI charge. However, many states now have .08 BAC per se statutes, making it illegal per se to operate a motor vehicle with a blood alcohol concentration (BAC) of .08 percent or higher regardless of the level of physical or mental impairment. In such a case, DUI convictions are very hard to avoid.

Thus, immigrants, who may come from countries in which DUI crimes are not prosecuted as strictly as in the United States, must become aware of the harsh consequences of drunken driving and decide not to drive after drinking. Finally, permanent residents should take the precaution by applying for U.S. citizenship through the naturalization process as soon as they become eligible to do so.

The information contained in article is provided for general information only and should not serve as a substitute for legal advice.