Most DUI offenses in California are misdemeanors. However, aggravating circumstances, a prior criminal history, and other factors could result in felony DUI charges. Under California DUI laws, a drunk driving conviction stays on your criminal record as a “priorable” offense for ten years. Felony DUI convictions always count as a priorable offense, regardless of the date of conviction.
Dealing with DUI charges can be stressful and frightening. However, if you are an illegal resident of the United States or an immigrant with a VISA, a DUI conviction could negatively affect your immigration status.
The Department of Homeland Security can deport any non-US resident back to their home country and bar them from reentering the United States for a specific period or indefinitely. That includes non-US citizens living and working in this country legally.
Therefore, it is important to understand how a drunk driving conviction could affect your immigration status or result in deportation.
Foreign Citizen DUI Cases in California
If law enforcement officers arrest a foreign person for driving under the influence in California, they face the same penalties that a citizen faces for a conviction on the criminal charges. For example, aggravating factors can result in enhanced sentences for criminal convictions of DUI.
However, undocumented immigrants, permanent residents, and anyone who is not a U.S. citizen must deal with the added complication of what a drunk driving conviction does to the immigration status.
Are you are a foreign national charged with driving under the influence in California? If so, it is crucial for you to seek advice from an immigration attorney and a California DUI defense lawyer as soon as possible. Potential consequences that you could face include:
Deportation for Undocumented Immigrants
If you are in the United States illegally, a DUI arrest can lead to deportation. It does not matter whether you are guilty of driving under the influence. You will likely undergo immigration proceedings and deportation, regardless of your guilt or innocence.
ICE (Immigration and Customs Enforcement) may become aware of your arrest for driving under the influence through the DHS Secure Communities Program. If ICE realizes that a California law enforcement agency has custody of you, it could issue an immigration hold.
In some cases, the police officers making the DUI arrest may become aware that you are in the country illegally. If so, they could inform ICE of your arrest. Having a fake driver’s license or documentation does not fool law enforcement officers for very long.
If ICE officials do not discover you after a DUI arrest, you might not want to fight the DUI charges for fear of being discovered. However, having a criminal record could put you higher on the ICE radar. Talk to a California DUI defense lawyer about potential DUI defenses that could prevent you from having a criminal record.
Your Visa May Be Revoked for a DUI Arrest in California
If you are in the United States legally, you could still face deportation for a DUI arrest. The United States Department of State could revoke your visa for being arrested for drunk driving.
The revocation of your visa could occur before you have a chance to defend yourself against the DUI charges. It is essential to understand that the DOS can revoke your visa merely on the grounds you were arrested for drunk driving. It does not need to wait until you are found guilty of DUI charges to revoke your visa.
The process may be quick because law enforcement agencies share information about arrest records and bench warrants. You could receive the notice of visa revocation shortly after being arrested for driving under the influence. The notice may come before our DMV administrative hearing or DUI pre-trial hearing.
Visa revocations could impact all visa holders and their dependents, including students, highly skilled workers, and visitors. Once the government revokes your visa, you cannot reenter the United States. If you remain in the country, you are doing so illegally.
You must appear before the US consular officer to re-establish your eligibility for a visa. There are no guarantees that you will be granted another visa to reenter the United States after the government revokes your visa for a DUI arrest or conviction.
Deportation for Being Charged with DUI with Aggravating Factors
Green card holders (permanent residents) and other legal non-citizens generally do not need to worry about being deported if they are charged with or convicted of driving under the influence. Traditionally, a DUI conviction was not grounds for deportation for these individuals.
The United States Supreme Court ruled that driving under the influence was not a violent crime, so it was not an aggravated felony. Aggravated felonies are generally grounds for deportation. However, there are exceptions.
If you are arrested for driving under the influence with aggravated circumstances, you could face deportation or problems with your immigration status. In addition, if you leave the country, you could be barred from reentering.
Examples of aggravating factors that could increase a DUI to a deportable offense for some legal aliens include:
- Having a child in the vehicle, resulting in child endangerment charges
- Being arrested for drunk driving while driving on a suspended driver’s license
- Having multiple DUI offenses or being listed as a habitual traffic offender
- Being arrested for drunk driving after committing other crimes
- Driving under the influence of a controlled substance
- Causing injury or death because of a DUI accident
In addition to worrying about being deported, a person with a green card must also worry whether a DUI can prevent them from becoming a US citizen. There is a test of good moral character during the examination process for citizenship.
A crime involving moral turpitude within five years of the citizenship application could complicate the matter. Some of the aggravating factors associated with drunk driving could be interpreted as a crime of moral turpitude.
Fighting a DUI can prevent a criminal record, making passing the good moral character test easier. Therefore, if you intend to apply for citizenship, it is vital that you seek legal advice from your immigration lawyer and a skilled California DUI defense lawyer.
What Should I Do if I Am Arrested for DUI in California, and I Am Not an Untied States Citizen?
Seek legal advice from a California DUI attorney and immigration lawyer immediately. Each DUI case involving a no-citizen is unique. Therefore, the circumstances of your DUI case combined with the unique circumstances of your immigration status mean that each case must be evaluated individually.
Even though some individuals could be deported merely by being arrested for DUI, it does not mean you should not prepare to fight DUI charges aggressively.
You are innocent until proven guilty. The prosecutor has the burden of proving beyond a reasonable doubt that the charges against you are true. That level of proof is a high standard in a criminal court proceeding.
There are many ways to beat DUI charges in California. Numerous defense strategies attack drunk driving charges from various positions. An experienced California DUI attorney investigates the circumstances surrounding the DUI stop and the arrest for driving under the influence.
The attorney’s investigation may lead to flaws regarding procedure or evidence in the case. Those flaws may give rise to one or more DUI defenses.
Potential DUI Defenses That Could Result in Dismissal or Reduced Charges
Some of the most common DUI defenses that can result in a DUI dismissal or reduction of charges include:
Problems with Chemical Tests for BAC Levels
Breathalyzer tests measure the amount of blood alcohol on your breath. However, those results could be inaccurate for many reasons. Common causes of inaccurate breathalyzer results include, but are not limited to:
- Differences in a person’s individual partition ratio
- Malfunctioning equipment
- Incorrect calibration of the equipment
- Lack of maintenance or property training
- Certain medical conditions, including diabetes, GERD, hiatal hernia, and acid reflux
- Ketosis from low-carb diets
- Mouth alcohol because of dentures, using breath spray, burping, using an asthma inhaler, etc.
Blood and urine tests may also be incorrect and flawed. For example, fermented blood can cause BAC results to be inaccurate. Incorrectly handling the samples can cause contamination. Improper storage of samples can also result in inaccurate results.
Your DUI defense lawyer may attack the results of a chemical test to have your charges dismissed or reduced.
Lack of Probable Cause for a DUI Stop or Arrest
Police officers must have probable cause or reasonable suspicion to make a DUI stop or arrest. Your attorney may file a motion to suppress evidence because of an illegal search. A lack of probable cause could result in the DUI charges being dismissed.
Rising Blood Alcohol Levels
The alcohol in your system continues to increase for some time after you consume your last alcoholic beverage. Depending on the person, it could take up to three hours after consuming alcohol for the body to absorb the alcohol fully.
If the police officer waits too long to perform a chemical test, your BAC could be much higher than it was at the time of your arrest.
In some cases, you might have had a BAC level below the legal limit when the police officer stopped you for suspicion of drunk driving. So instead of being impaired by alcohol, you might have just been distracted or be a poor driver.
Health Conditions That Mimic Intoxication
Some medical conditions can make someone appear intoxicated when they have not had any alcohol to drink. For example, a diabetic sugar low can cause slurred speech, trouble walking, and inability to follow instructions. Brain damage and epilepsy could cause someone to appear drunk.
Allergies could cause red or blurry eyes. Slurred speech may also be caused by fatigue and drowsiness from working a double shift. Alcohol on your breath may be from using an OTC medication or cough drops.
Explore All Potential DUI Defenses with a California DUI Defense Lawyer
The above DUI defenses are just a few of the defense strategies that a lawyer might use to defend you against DUI charges. However, many more potential defenses could apply in your case. Explore all of the ways you could beat DUI charges in California by meeting with an attorney as soon as possible after a drunk driving arrest.
A prosecutor or police officer will not tell you that the evidence against you is weak. They will not tell you that you have one or more defenses what could result in the court dismissing the DUI charges. Only a skilled DUI attorney can do that for you.
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