Can you get deported for a DUI? A lawyer explains

If you are a non-U.S. citizen in the country lawfully, a single DUI conviction should not cause adverse immigration consequences. But under certain circumstances, driving under the influence can lead to

• deportation,
• inadmissibility to the United States, or
• denial of citizenship.

DUI crimes that can subject you to deportation and/or inadmissibility include:

• Driving while under the influence of, or addicted to, drugs (or in rare cases, alcohol), ^{1 2 3}
• DUI with a child in the car,⁴ or
• Multiple drunk or drugged driving convictions (or a DUI plus other criminal convictions).⁵

Meanwhile, if you are an undocumented immigrant arrested for driving under the influence, you face possible deportation — not for the DUI criminal charge, but for being present unlawfully.

For more information on DUI and unlawful presence, please see Section 9 below. You may also wish to read our blog post “Should an undocumented immigrant get a driver’s license in California?”

In order to help you better understand the immigration consequences of a driving under the influence conviction, our California DUI lawyers discuss the following, below:

• 1. Deportable and Inadmissible Crimes
• 2. Misdemeanor DUIs
• 3. Crimes Involving Moral Turpitude
• 4. Aggravated Felonies
• 5. DUI of Drugs (DUID)
• 6. DUI with Child Passenger
• 7. Multiple DUI Convictions
• 8. “Good Moral Character” Determination
• 9. Undocumented Aliens
• 10. Entering Canada
• Additional Reading

1. Deportable and Inadmissible Crimes

The federal Immigration and Nationality Act (usually referred to as the “INA”) governs U.S. immigration law. Under the INA, some criminal convictions can lead to “deportation” and/or “inadmissibility.”⁶

If a crime makes you deportable, you may be removed (deported) from the country.

If a crime makes you inadmissible, you may not:

• Re-enter the country after leaving,
• Become a U.S. citizen (“naturalize”),
• Apply for permanent residence (a “green card”), or
• Apply for an “adjustment of status” from illegal to legal.⁷

“Deportable” Crimes

There are numerous categories of crimes that can get you “removed” (deported) from the United States. These include:

• “Crimes involving moral turpitude” (“CIMT”),⁸
• “Aggravated felonies,”⁹
• Controlled substances (drug) crimes, ¹⁰ and
• Crimes involving knowing child neglect.¹¹

Crimes of Moral Turpitude

The legal definition of moral turpitude is vague. This makes it the most problematic category for determining whether a DUI can lead to deportation.¹²

But, in general, a CIMT is one that involves:

• Dishonesty,
• Fraud, or
• Antisocial behavior that harms others.¹³

Typical examples are “crimes of violence” and California fraud crimes.

Aggravated Felonies

An aggravated felony is any crime designated as such by the United States Congress. It does not necessarily have to be a felony under California law.

Some 30 crimes as currently designated as aggravated felonies. These include violent felonies such as murder, rape and kidnapping.¹⁴

But they also include many seemingly low-level California drug crimes and white-collar crimes.

However, at least at present, driving under the influence is not classified as an aggravated felony.¹⁵

Drug Offenses

A conviction relating to a drug on the federal list of controlled substances is a deportable offense.¹⁶ But because federal and California law define drug crimes differently, this is a particularly complicated area of immigration law.

We will not discuss this subject in-depth here. Just know that because of this distinction, using a conviction for DUI of drugs (“DUID”), Vehicle Code 23152(f) VC as a basis for removal is open to challenge.

Though you might still have to fight removal in immigration court. So it is usually best to avoid a conviction for DUID in the first place.

DUID with Prior Convictions

Another potential problem with a DUID is that an arrest might trigger further investigation. This can be a problem even if you are not convicted of drugged driving offense. This is because it is illegal to drive in California at all if you are addicted to any drug.¹⁷

So if there is drug paraphernalia in your vehicle–or if you have prior DUID convictions that make drug use seem like a habitual problem–you could face difficulties.

Knowing Child Neglect

Driving under the influence with a child in the car is sometimes charged as “child endangerment,” Penal Code 273a.¹⁸ As a result, if you are convicted of this offense, you may face removal (deportation) proceedings.

Merely placing a child in danger negligently is not grounds for deportation.¹⁹ But knowingly putting a child in danger is a ground for removal (deportation) under the Immigration and Nationality Act.²⁰

We discuss this issue in more detail in Section 6, below.

Inadmissible Crimes

Inadmissible crimes are those which keep you from being able to enter the U.S. lawfully or to become a U.S. citizen or green-card holder. Such crimes include:

• Any crime involving moral turpitude (“CIMT”) committed within five (5) years of entry into the United States,²¹
• Most drug crimes,²²
• Any two (2) or more crimes for which your total prison sentences add up to five (5) years or more,²³ and/or
• Any crime(s) that demonstrate a lack of “good moral character.”²⁴

It is possible for a crime to fit into more than one category. This can make it difficult to determine whether a particular charge can lead to deportation and/or inadmissibility.

Lawyers Must Advise You of Immigration Consequences

If you are a non-citizen, your California criminal lawyers must, by law, advise you of the potential immigration consequences of:

• A plea of guilty or nolo contendere (no contest) to a crime, or
• Any proposed plea bargain the immigrant is considering.

If you are not advised of such consequences, you can bring a Padilla motion to set aside the conviction.

2. Misdemeanor DUIs

Most convictions for driving under the influence of alcohol do not have negative immigration consequences (at least at present). DUI is usually charged as a misdemeanor and is not considered a CIMT or an aggravated felony.²⁵

Courts have repeatedly held that simply driving under the influence – by itself – is not grounds for removal (deportation).²⁶

Common charges that do not usually have immigration consequences include:

• Vehicle Code 23152(a), driving under the influence of alcohol,
• Vehicle Code 23152(b), driving with a BAC of .08% or greater, and
• Vehicle Code 23153, DUI causing injury.²⁷

The only way that one of these charges would be likely to trigger immigration consequences would be if:

1. You were convicted of another crime based on the same incident or had a prior criminal record, and
2. The total sentences handed down for all your crimes added up to more than five (5) years.²⁸

3. Crimes Involving Moral Turpitude

The INA does not define “crime of moral turpitude.”²⁹ Nevertheless, it is settled law that an ordinary (simple) DUI is not a CIMT. ³⁰

Courts have relied on the interpretation of “CIMT” used adopted by the federal Board of Immigration Appeals (“BIA”). The BIA defines moral turpitude as “conduct that shocks the public conscience.”³¹

This includes conduct that is:

• Inherently base, vile, or depraved, and
• Not acceptable for persons living in a society.³²

Specific Intent

In deciding whether a crime is a CIMT, courts will look first to the criminal statute defining the crime. To be a CIMT, a crime must usually be one that requires you to have a specific intent to commit the crime.³³ Mere criminal negligence is insufficient.

This is why a simple drunk driving conviction is not a crime of moral turpitude. Under California law, no specific mental state must be proved for a DUI conviction. The only “elements” of the crime that must be proved are:

1. That you drove a vehicle, and
2. That you were under the influence of alcohol or drugs at the time.³⁴

In other words, the prosecutor does not need to show that you intended to drive drunk. They also do not need to prove that you intended to violate a traffic law or injure anyone.

DUI with Injury

Historically, DUI causing injury or death was not a crime involving moral turpitude. This is because in order for a crime to be a CIMT, the statute defining that crime must set forth specific criminal intent. In the past, this required that a crime be committed either “willfully” (on purpose) or “knowingly,” meaning either that:

• You intended the result that the statute was meant to punish, or
• You knew your actions would achieve that result.³⁵

Example: California’s “robbery” law, Penal Code 211, defines “robbery” as taking personal property from someone, against his or her will, through the use of force or fear.

This a crime of moral turpitude because robbery requires a willful action and otherwise qualifies as a CIMT. ³⁶

But in a case known as Matter of Franklin, the Board of Immigration Appeals held that criminal recklessness was enough to make an offense a CIMT.³⁷

This is worrisome if you are an immigrant. The Administrative Appeals Office (“AAO”)³⁸ has already suggested that this holding applies to gross vehicular manslaughter while intoxicated, California Penal Code 191.5 – at least for purposes of an application for a waiver of inadmissibility. ³⁹

Their reasoning is that:

1. A PC 191.5 violation requires “gross negligence,” and
2. The California Supreme Court’s definition of “gross negligence” mirrors the definition of “recklessness” in the statute at issue in the Franklin case.⁴⁰

It is not known whether the Board of Immigration Appeals (“BIA”)⁴¹ or a federal court would follow this reasoning in a removal (deportation) case.

DUI with Death

Drunk driving is usually not a crime of moral turpitude even if another person is killed as a result. There must be a specific intent to commit a crime or achieve a certain result for a crime to be a CIMT.

As discussed in Section 3.2., above, following the Franklin decision, there is concern that this may be changing in cases of gross vehicular manslaughter while intoxicated.

Exception: DUI Murder (a/k/a “Watson” Murder)

One type of DUI that counts as a crime involving moral turpitude is DUI murder (also known as “Watson” murder). Watson murder can be charged when you drive drunk or drugged and act with “implied malice” (also known as “malice aforethought”).

You act with implied malice when:

1. You intentionally commit an act (in this case driving under the influence);
2. The natural and probable consequences of the act are dangerous to human life;
3. At the time you act, you know the act is dangerous to human life; and
4. You deliberately act with conscious disregard for human life.⁴²

Murder is both an aggravated felony and a CIMT. So if you are convicted, you are both deportable and inadmissible.

4. Aggravated Felonies

Most DUI convictions are not generally considered aggravated felonies. To be an aggravated felony, a crime must be defined as such in the INA.⁴³ But the current list does not include driving under the influence.

And the United States Supreme Court has held that driving under influence is ordinarily not a “crime of violence.” Crimes of violence constitute one category of offense that often counts as an aggravated felony.⁴⁴ So unless you are convicted of “Watson” murder, drunk driving is not a crime of violence–even if it causes injury or death.⁴⁵

It is possible that in the future Congress may add DUI causing injury or death to the definition of “aggravated felony.” But for now, most driving under the influence crimes are not on this list.

5. DUI of Drugs (DUID)

While a simple DUI involving alcohol often has no immigration consequences, DUI of drugs is not so simple. Under U.S. immigration law, if you are convicted of drug crimes, you are both deportable and inadmissible.⁴⁶

Under the law, DUID often involves an illegal substance. And when it does, a conviction for DUID can subject you to removal action.

However, California and federal drug laws have different definitions of controlled substances. For highly technical reasons, this often means that when you are convicted under California drug laws, you cannot successfully be deported, even if the substance is on the federal list. (A federal drug conviction is different).

However, you may still have to fight the issue in immigration court. So rather than fight DUID charges in criminal court and risk a conviction, you may prefer to plead guilty or no contest to a lesser crime (such as “exhibition of speed”) with fewer immigration consequences.

6. DUI with Child Passenger

There may be adverse immigration consequences when you drive under the influence with a child in the car. DUI with a child in the vehicle can result in a conviction for “child endangerment” under Penal Code 273a.⁴⁷

As discussed above, convictions for driving under the influence do not normally lead to immigration consequences. This is true even if you get hit with enhanced penalties under Vehicle Code 23572, DUI with a child under 14 in the car.⁴⁸

But sometimes the prosecutor charges PC 273a child endangerment instead of—or in addition to—those enhanced penalties.

Child Endangerment

Unlike DUI, child endangerment charges can potentially be a CIMT. This is because one prong of the statute punishes you if you knowingly put a child in danger.⁴⁹

Knowingly putting a child in danger is a ground for removal (deportation) under the Immigration and Nationality Act.⁵⁰

But there is another prong of PC 273a that punishes you for placing a child “in a situation where his or her person or health may be endangered” (emphasis added).⁵¹ This is negligent child endangerment, which is not grounds for deportation.⁵²

Most California immigration lawyers will argue that no charges under PC 273a should ever be grounds for deportation. But it is not safe to assume that an overworked immigration law judge will understand these highly technical arguments.

According to Santa Bernardino DUI and immigration attorney John Murray⁵³:

“A regular DUI won’t make an immigrant deportable or inadmissible–even with enhanced penalties for having a child under 14 in the car.

But a separate child endangerment conviction can lead to a tough fight about whether the offense was a crime of moral turpitude. Not all immigration judges understand the complex nuances of the law in this area. So I fight very hard to prevent a child endangerment conviction in the first place.”

7. Multiple DUI Convictions

If you are a repeat DUI offender, you may be inadmissible to the United States even when you have been convicted only of ordinary DUIs. It all depends on the amount of total jail time to which you were sentenced for all crimes you have committed.

You are inadmissible if:

1. You have been convicted of any two (2) or more crimes (including one or more DUI offenses), and
2. The total sentences for all crimes equal or exceed five (5) years. ⁵⁴

Felony DUI

The five-year period for multiple convictions is especially likely to affect you if you are convicted of felony DUI based on prior convictions.

This is because a fourth DUI conviction within a ten-year period is a felony that can be punished by as much as three (3) years in jail. When combined with sentences for the prior DUI convictions (as well as any other crimes you have committed) that might push you over the five-year limit.⁵⁵

Example: Tommy, a non-citizen, is convicted of drunk driving four times within a space of ten years. For his first conviction, he receives a fine and probation. But his second involves the aggravating factor of driving at excessive speeds.⁵⁶ He is sentenced to six months in jail. His third conviction is for felony DUI causing injury, and he is sentenced to 18 months in jail.⁵⁷

By his fourth conviction, the judge is inclined to be extremely harsh with him. The judge sentences him to the three (3) years. This brings Tommy’s total to exactly five (5) years.

Now that Tommy has been convicted of more than 2 offenses with aggregate sentences of at least five (5) years, he is inadmissible. He is unable to leave the country and re-enter or to become a U.S. citizen.

8. “Good Moral Character” Determination

Certain changes in immigration status require you to demonstrate “good moral character.” For instance, good moral character must be shown if you wish to:

• Become “naturalized” (naturalization means to become a U.S. citizen), ⁵⁸ or
• Obtain “cancellation of removal” in California.⁵⁹

Usually having one or even two ordinary DUI convictions will not negatively affect this determination.

But multiple convictions could lead the government to conclude that you are a “habitual drunkard.” Under U.S. immigration law, a “habitual drunkard” is not considered to be of good moral character.⁶⁰

Note that “habitual drunkard” is not the same as being an alcoholic. Alcoholism does not, itself, preclude a finding of good moral character. It is your conduct during the relevant time period that counts.

Example: Miguel, an alcoholic, has lived unlawfully in the U.S. for twenty years. He is a member of Alcoholics Anonymous and has been to California DUI school several times. Still, he is a hardworking and respected member of the community.

Miguel gets caught up in a sweep at work and is served a notice of removal (deportation) for unlawful presence. Miguel then petitions the immigration court for cancellation of removal.

Unfortunately, Miguel has five drunk driving convictions on his record. These represent conduct that shows that Miguel cannot control his alcoholism. This makes him a “habitual drunkard” for immigration law purposes. The IJ therefore denies the petition because under federal law, Miguel is not of good moral character.⁶¹

9. Undocumented Aliens

Even though a DUI conviction is not a cause for deportation, it might flag your unlawful presence. But this is not always the case.

California is a so-called “sanctuary state.” This means that California law enforcement agencies will not contact U.S. Immigration and Customs Enforcement (“ICE”) when you:

• Use an AB 60 license to identify yourself to state or local law enforcement, or
• When a state or local law enforcement officer arrests you for a low-level crime (such as simple DUI).⁶²

But arrests and convictions are public records. So if ICE is already looking for you, an arrest may help ICE locate you.⁶³

And older drunk driving convictions may already be known by ICE. According to the National Immigration Law Center, in 2017 ICE agents frequently detained undocumented immigrants who had DUI convictions that were many years old. Those people then faced deportation for unlawful presence.⁶⁴

Unfortunately, as an undocumented alien, the only way you can truly protect yourself against deportation for a DUI is to not drink or use drugs and drive.

10. Entering Canada

Both U.S. citizens and non-citizens are inadmissible to Canada after any conviction.⁶⁵

We recommend you contact an experienced DUI lawyer before attempting to enter Canada with a DUI on your record.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Deporting Nonviolent Violent Aliens: Misapplication of 18 U.S.C. 16(B) to Aliens Convicted of Driving under the Influence – DePaul Law Review.
• Deporting Legal Aliens Convicted of Drunk Driving: Analyzing the Classification of Drunk Driving as a Crime of Violence – Marquette Law Review.
• Drunk Driving and Deportation – Should DUI Convictions Be Treated as Crimes of Violence for INS Removal Purposes – Washington University Law Quarterly.
• Deportation and Driving: Felony DUI and Reckless Driving as Crimes of Violence following Leocal v. Ashcroft – Journal of Crime and Criminology Law.
• DUI as a Crime of Violence under 18 U.S.C. 16(b); Does a Drunk Driver Risk Using Force – Loyola University of Chicago Law Review.

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LEGAL REFERENCES:

1. See Immigration & Nationality Act (“INA”) 237, codified at 8 United States Code (“USC”) 1227. INA 237 (a)(2) lists the crimes that can make a non-citizen deportable. Driving under the influence is not one of them.
2. See INA 212(a)(2), 8 USC 1182(a)(2).
3. INA 237(a)(2)(B)(ii), 8 USC 1227(a)(2)(B)(ii)
4. INA 237(a)(2)(E)(i), 8 USC 1227(a)(2)(E)(i).
5. INA 212(a)(2) (B)
6. See INA 237(a)(2) and INA 212(a)(2).
7. See INA 245, 8 USC 1255.
8. INA 237(a)(2)(A)(i), 8 USC 1227(a)(2)(A)(i):
9. See INA 101(a)(43), 8 USC 1101 (a)(43) for the definition of “aggravated felony.”
10. See INA 237(a)(2)(B)(i), 8 USC 1227(a)(2)(B)(i).See also INA 237(a)(2)(B)(ii), endnote 3.
11. INA 237(a)(2)(E)(i).
12. See, for example, Nunez v. Holder (2010) 594 F.3d 1124, 1124 (“Once again we face the question of what is moral turpitude [for purposes of criminal immigration law]: a nebulous question that we are required to answer on the basis of judicially established categories of criminal conduct. “)
13. See, for example, Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1074-75 (9th Cir.2007)
14. The full list of aggravated felonies is set forth in 101(a)(43), codified at 8 U.S. Code 1101(a)(43).
15. Same. See also Leocal v. Ashcroft, 543 U.S. 1 (2004)
16. 26 8 USC 1182(a)(2)(B)(i), 1227(a)(2)(B)(i).
17. Vehicle Code 23152(c)
18. Penal Code 273a
19. Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009).
20. INA 237(a)(2)(E)(i). See also Matter of Mendoza-Osorio, 26 I&N Dec. 703, 710 (BIA 2016).
21. INA 212(a)(2) (A)(i)
22. INA 212(a)(2) (A)(i)
23. INA 212(a)(2) (B), endnote 5.
24. INA 316(a)
25. See Matter of Abreu-Semino, 12 I&N Dec. 775, 777 (BIA 1968)
26. Same.
27. Same.
28. INA 212(a)(2) (B), endnote 5.
29. Abreu-Semino, endnote 25.
30. See Matter of Torres-Varela 23 I&N Dec. 78 (BIA 2001)
31. Torres-Varela, endnote 30.
32. See cases cited in Torres-Varela, endnote 30.
33. Under current Ninth Circuit law, upheld by the BIA, recklessness is generally not considered the specific intent that would make a California “wet reckless” conviction a “crime of violence” under 18 USC 16.
34. Vehicle Code 23152 VC
35. See, for example, Matter of Lopez-Meza, (BIA 1999) 22 I&N Dec. 1188.
36. See People v. Stewart, (1985) 171 Cal.App.3d 59, 66. (“[I]t is beyond dispute that robbery necessarily involves moral turpitude…”).
37. Matter of Franklin, endnote 33.
38. The AAO is an office within United States Citizenship and Immigration Services (USCIS). Most people who want to appeal an adverse USCIS decision must submit a petition to the AAO.
39. See the redacted AAO determination letter linked to here.
40. Same. See also People v. Bennett (1991) 54 Cal.3d 1032.
41. The Board of Immigration Appeals (BIA) is the highest administrative body for interpreting and applying United States immigration laws.
42. See California Penal Code 188 PC.
43. INA 101(a)(43)
44. A “crime of violence” is any offense that has as an element the use, attempted use, or threatened use of physical force against the person or prop­erty of another. See 18 USC 16(a). Note that there is an alternative definition of “crime of violence” set forth in 18 USC 16(b), but that provision was recently held by the U.S. Supreme Court to be unconstitutionally vague. See Sessions v. Dimaya, April 17, 2018.
45. Leocal v. Ashcroft, endnote 15.
46. INA 237(a)(2)(B)(i); INA 212(a)(2)(A)(i)(II).
47. Penal Code 273a
48. See Vehicle Code 23572 VC.
49. Penal Code 273a(a), endnote 46.
50. INA 237(a)(2)(E)(i). See also Matter of Mendoza-Osorio, 26 I&N Dec. 703, 710 (BIA 2016).
51. See Penal Code 273a(b), endnote 46.
52. See Fregozo v. Holder, 576 F.3d 1030 (9th Cir. 2009).
53. San Bernardino DUI and immigration attorney John Murray is one of Southern California’s leading experts on DUI criminal defense. He defends clients in criminal cases throughout southern California as well as at all southern California DMV hearing locations.
54. INA 212(a)(2)(B), endnote 5.
55. Vehicle Code 23550(a) VC.
56. Vehicle Code 23582(a) VC.
57. See Vehicle Code 23153 VC.
58. See INA 316(a)
59. 8 USC 1229b(b)(1).
60. 8 U.S. Code 1101 (f), endnote 3.
61. See Ledezma-Cosino v. Sessions (9^th Cir. 2017) No. 12-73289.
62. See California Government Code 7282.5, which lists crimes for which California local and state law enforcement officials may contact ICE. Driving under the influence is not one of them.
63. A DUI arrest is reported to the California DMV. It is unknown to what extent ICE has access to California DMV databases. So even though the California DMV does not make immigration status public, if ICE is already searching for a name, the DMV’s records may help ICE locate the individual. See National Immigration Law Center, “How U.S. Immigration & Customs Enforcement and State Motor Vehicle Departments Share Information,” May 2016.
64. See same.
65. Canadian Immigration and Refugee Protection Act (“IRPA”) 36 (2).