Felony DUI

CA Governor Jerry Brown Signs New DUI Laws (Senate Bill 1046)

Governor Jerry Brown signed Senate Bill 1046, a bill extending the current Pilot program in four counties requiring the installation of interlock devices (IID) after DUI convictions in California.   The new law will go into effect in 2019. The devices cost about $60 to $80 per month, with an installation fee of $70 to $150. The bill appears to include programs for low income drivers as the costs of the device can be a real challenge to some.  It remains to be seen whether the court and the Department of motor vehicles will make such fee waivers so burdensome that the bill will, in effect, make it impossible for many drivers to continue with the daily responsibilities.

  • for a first DUI offense involving an injury (CA Vehicle Code 23153) , an ID would be required for six months;
  • for first non-injury DUI offense (CA Vehicle Code 23152), an offender may choose to have an ID for six months with full driving privileges, or a one-year restricted license that only allows driving to work, as well as a treatment program;
  • second DUI convictions would require the maintenance of the ID device for one year.
  • third DUI convictions would require an ID for two years;
  • for fourth DUIs, (generally charged as felonies), IDs would be required for three years.

Immigration Advise for Criminal Arrests

You were arrested for DUI (CA Vehicle Code section 23152 or 23153), but the case got dismissed because the police officer made a mistake.  Or maybe you were arrested for domestic battery (penal code 243E or penal code 273.5), but the District Attorney didn’t file charges after your husband sent a letter saying it was all a misunderstanding.  Or perhaps the DA did file charges, but then dropped them after you stayed out of trouble for 6 months and completed anger management classes.  Now you needs to travel overseas.

You should be good to return, right?  At least if you give her something from the court saying the charges were not filed or dismissed?  Maybe not.  Not all immigration consequences require a conviction.  And a noncitizen admitted on a nonimmigrant visa, such as the H-1B work visa, E-2 investor visa, F-1 student visa, B-1/B-2 visitor visa, etc., is in a more precarious situation than a permanent resident (green card-holder).

This blog post discusses the health grounds of inadmissibility that potentially apply to a nonimmigrant arrested for DUI or domestic violence.  Consult with an immigration attorney for advice on the consequences specific to a particular client.

Prudential Revocation: Cancelling a nonimmigrant visa for suspected ineligibility or for virtually any reason at all if done in the exercise of the Secretary of State’s discretion.


DUI Arrests

An arrest or conviction for driving under the influence of alcohol (or another crime committed while under the influence) raises the issue of whether a noncitizen is inadmissible to the U.S. for having a mental disorder with an associated harmful behavior.  This potential ground of inadmissibility can cause problems for both visa applicants and nonimmigrants who already have a visa.

Visa Applicants

A consular officer will refer a nonimmigrant visa applicant for a medical exam by a designated physician (panel physician) if the applicant has one alcohol-related arrest or conviction in the last 5 years, 2 or more alcohol-related arrests or convictions in the last 10 years, or other evidence to suggest an alcohol problem.  9 FAM 302.2-7(B)(3) (unless otherwise noted, all citations are to the Department of State Foreign Affairs Manual, available at https://fam.state.gov/Fam/FAM.aspx).  Alcohol-related arrests include not only DUI, but also public intoxication and other arrests where alcohol was a factor.

At the medical exam, the physician will determine whether the applicant is “Class A,” which is regulation-speak for medically ineligible for a visa.  There are various grounds of medical ineligibility (inadmissibility).  The one relevant to an alcohol-related arrest is section 212(a)(1)(A)(iii) of the Immigration and Nationality Act, which makes a noncitizen inadmissible if he or she has:

  • A current mental disorder with an associated harmful behavior, or
  • A past mental disorder with an associated harmful behavior, if the harmful behavior is likely to recur or lead to other harmful behavior in the future.

9 FAM 302.2-7(B)(1).  The mental disorder must be one recognized by the current version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5 at present).  The disorder could be Alcohol Use Disorder (Mild, Moderate, or Severe), Depression, or any other recognized disorder so long as there is an association between the disorder and the applicant’s harmful behavior.  See 9 FAM 302.2-7(B)(2), (5)(a).  Harmful behavior consists of actions that cause “(a) Serious psychological or physical injury to the alien or to others (e.g., suicide attempt or pedophilia); (b) A serious threat to the health or safety of the alien or others (e.g., driving while intoxicated or verbally threatening to kill someone); [or] (c) Major property damage.”  9 FAM 302.2-7(B)(2).

The panel physician applies his or her clinical judgment to determine whether a visa applicant has a mental disorder with an associated harmful behavior.  See 9 FAM 302.2-7(B)(2).  In making that determination, the panel physician knows the visa applicant has a motive to minimize or misrepresent her alcohol use and any negative consequences of it.  The physician therefore does not necessarily take the applicant’s answers at face value.   This injects a significant amount of subjectivity into the diagnosis.  Whether the nonimmigrant engaged in harmful behavior can also be a subjective determination if there was no conviction and the nonimmigrant denies that she actually drove under the influence or otherwise engaged in harmful behavior.  The physician must decide whether to believe the applicant or not.  Even more subjective is the physician’s determination of whether the harmful behavior is likely to recur in the future.  Crystal ball, anyone?

What is clear, though, is that avoiding a Class A finding is more difficult if the DUI or other alcohol-related offense occurred within the last 12 months.  Why?  Because a current mental disorder with an associated harmful behavior will always make the visa applicant Class A and thus inadmissible.  9 FAM 302.2-7(B)(7).  Sustained, full remission of a mental disorder with an associated harmful behavior requires showing that for the past 12 months (minimum) there has been either: no substance use, no mental disorder, or no associated harmful behavior.  9 FAM 302.2-7(B)(2).  So, if the panel physician finds the visa applicant currently has a mental disorder, then her only shot at avoiding inadmissibility is to show she does not currently have an associated harmful behavior and that the harmful behavior likely will not recur in the future.  See 9 FAM 302.2-7(B)(7).  That is impossible if the applicant has a DUI or other harmful behavior within the last 12 months.  See 9 FAM 302.2-7(B)(2).

Visa Revocations

What about a nonimmigrant arrested for DUI after she receives a visa?  Well, the Department of State continues to keep tabs on nonimmigrants after visa approval.  The FBI forwards rap sheet data to it on a daily to weekly basis.  Discovery of a DUI arrest or conviction within the last 5 years will almost always result in prudential revocation of an existing nonimmigrant visa.  9 FAM 403.11-5(B).

Only offenses involving driving under the influence trigger this near-certain revocation; more discretion exists for other types of alcohol-related arrests.  9 FAM 403.11-5(B).  (Also, persons traveling on a diplomatic or official visa are not subject to the health grounds of inadmissibility, so any revocation of those visas is done on a purely discretionary basis.  9 FAM 403.11-4(C)(2).)

Unfortunately, the Department of State is not required to notify a nonimmigrant of revocation, either in advance or upon making the decision.  9 FAM 403.11-4(A)(1), 403.11-5.  In practice, visa-holders rarely seem to receive advance notice.  A nonimmigrant often does not discover that her visa is worthless until an airline denies her boarding to return to the U.S.  (Airlines must submit their passenger lists in advance and are told to deny boarding to a passenger with a revoked visa.  9 FAM 403.11-4(A)(2).  The airlines do this scrupulously because they face a fine of up to $1,000 and the cost of flying the passenger back to the country of origin if they don’t.  See 9 FAM 403.11-4(A)(2).)

The visa likely will be physically voided (cancelled) in the nonimmigrant’s passport if she goes to the consulate to inquire about why she could not board her flight.  The visa will be cancelled even more quickly if U.S. Customs and Border Protection has a presence at the foreign airport, as it does in Canada; Abu Dhabi, UAE; Dublin, Ireland; and many European countries.  One of my clients told me how this happened to him at an airport in Europe on his way back from vacation: A U.S. CBP officer (in uniform, but without a sidearm) appeared at the ticket counter, took the passport from the airline employee, ordered my client to stand 20 feet away, used a pen to cancel the visa without prejudice, and then told him to “take it up with the Embassy.”

Taking it up with the Embassy after cancellation can be a lengthy process.  It requires going through the entire visa application process again with the addition of a medical exam.  9 FAM 403.11-6(B).  The process may take anywhere from a few weeks to several months.  For example, work visa interviews in India during the summer of 2016 had to be scheduled more than 2 months in advance.  The medical exam that follows the visa interview may take a week or two, and administrative review by the consular officer upon receipt of the exam could take days or weeks longer.  This delay could result in termination of an H-1B worker from her job or an F-1 student missing the start of classes.

Domestic Violence Arrests

Arrests for Domestic Violence can have consequences for a nonimmigrant.  The arrest will result in questions the next time the nonimmigrant applies for a visa.  The nonimmigrant’s answers to the questions at the visa interview may or may not trigger inadmissibility for admission to a crime involving moral turpitude, but here I will focus on how the answers also raise the issue of medical inadmissibility.

Medical Inadmissibility – Shanghai, China

The U.S. Consulate in Shanghai now appears to require a medical exam for every nonimmigrant visa applicant who has an arrest for domestic violence.  As with DUIs, the purpose of the exam is to determine whether the visa applicant has a current mental disorder with an associated harmful behavior or a past disorder with an associated harmful behavior that is likely to recur or lead to other harmful behavior.  This development has not been previously reported in American Immigration Lawyers Association (AILA) liaison reports or message boards.  It also is not the policy at the other consulates where I practice, or at least not yet.

I learned of Shanghai’s policy the hard way.  One of my clients applied for renewal of a visa there after an arrest for misdemeanor domestic battery that was not prosecuted.  The consular officer did not find him criminally inadmissible, but referred him for a medical exam.

In addition to the standard TB and blood tests, the exam consisted of an interview by the panel physician plus two separate interviews by psychologists and a multiple-choice diagnostic test.  At least they didn’t make him do a Rorschach inkblot test!  Fortunately, the panel physician declared my client “normal” and he eventually received his visa, albeit more than a month after the visa interview.

Staff at the medical clinic stated that medical exams are now required for all visa applicants in Shanghai with a domestic violence-related arrest.  This is an unsettling development because whether a visa applicant is medically inadmissible turns on the panel physician’s subjective clinical judgment.  Thus, an “immigration-safe” result in criminal court, such as non-filing, diversion, or dismissal of the charges, provides no protection.

(Source: Scott Mossman/Immigration attorney)

DUI Check Points in Alameda (CA Vehicle Code 23152)

Twenty one police agencies will conduct a county wide DUI check point on Labor Day.  DUI checkpoints have been a police tool in California since 1984 and require adherence to strict guidelines set forth in the case of Ingresoil v. Palmer.

The court in fact set out specific rules as to the  legality of DUI checkpoints (CA Vehicle Code 23152).  These include:

1.  The decision to have a check point must be made by supervisors.  Officers can’t simply decide to conduct a check point.  That would violate the fourth amendment.

2. Officers in the field can’t decide which individuals to detain.  That is, they must use a neutral formula previously set by supervisor.

3. The ultimate consideration is public and officer safety

4. The site of the check point must correlate to a to high drunk driving incident and must be chosen by supervisors

5. The check point must be limited in duration keeping in mind the effectiveness of the check point and the intrusiveness to the public

6. Each check point must be visible

7. Detention length can’t be unreasonably long

8. Check points require advanced publicity.

If you should happen by a check point, you are allowed to leave the scene.  While officers are not allowed to detain you for simply leaving the scene, they can detain you for any traffic infraction while doing so.  If you are “randomly” selected, the officer still must have probable cause to initiate a DUI investigation.  A strong odor of alcohol on your breath is the most common way by which officers claim the required probable cause to further investigate.

Remember, you are under no obligation to submit to any field sobriety tests.  You are under no obligation to submit to a chemical test UNLESS you are under arrest.

Have a safe Labor Day weekend!

Double DUI Arrest for Couple in Santa Rosa (CA Vehicle Code 23152(a) and 23152(b))

When a 23-year-old woman was pulled over on suspicion of a DUI (driving under the influence), her 28-year-old boyfriend was a passenger in the vehicle. One hour later, on his way to bail her out of jail, the boyfriend was also arrested on the same charge, but in a different vehicle. Neither was bailed out that evening, but the boyfriend will have to deal with violating parole and driving with a suspended license.

California law concerning DUIs is complicated and difficult to understand. First, if you have been arrested on suspicion of a DUI, you may actually find yourself being charged with 2 separate crimes – driving under the influence (CA Vehicle Code 23152(a)) and operating a motor vehicle with a BAC (blood alcohol content) of over 0.08% (CA Vehicle Code 23152(b)). Law enforcement agents must, in turn, be able to prove that a) you were actually operating a motor vehicle and b) that you were driving under the influence of drugs are alcohol at the time. When an individual gets pulled over by an officer, the first component, or element, of the case is usually satisfied – because you were seen driving the car or other vehicle. However, the second part is more difficult to prove.

Penalties for California DUIs depend upon prior convictions. If the DUI is a first offense, then it is likely that the person convicted will be charged with a misdemeanor, may spend 1 year in county jail, be forced to attend DUI classes, and pay a small fine (less than $400). You may also have your driver’s license suspended and suffer the consequences with your car insurance provider.

San Pablo Police Officer Arrested on DUI Charges (CA Vehicle Code 23152(a))

A long-time member of the San Pablo Police Department was arrested on DUI charges over the holiday weekend.  This arrest occurred just a matter of hours after his wife had been arrested for operating a watercraft under the influence of alcohol.  He has been placed on administrative leave and been temporarily suspended.

Although we often hear of instances in which an individual person is arrested for driving a motor vehicle under the influence of drugs or alcohol (CA Vehicle Code 23152(a)), it is rarer to hear of someone’s arrest for a DUI while operating a watercraft.  Usually, this violation of the law is referred to as a ‘DUI Boating,’ or BUI.  According to California law (California Harbors and Navigation Code 655), it is as illegal to operate a boat or other watercraft while under the influence as it is any other type of motor vehicle.  This includes water vessels of any kind, like aquaplanes and even water skis.

Usually, law enforcement officers are alerted to the suspected impairment of a particular boater or skier by their behavior.  For example, driving a watercraft erratically, speeding, and right-of-way violations may attract the unwanted attention of peace officers.  These agents may ask you to perform a field sobriety test and/or various types of chemical testing in order to determine whether your BAC (blood alcohol content) is either at or above the limit – .08% (the same system used for DUIs that do not involve watercraft).

Penalties for violating CA HNC 655 vary greatly.  If you have been convicted of a first-offense BUI, you may end up spending up to 6 months in county jail and paying around $1,000 in fines.  However, if you have any priors (including certain kinds of DUIs), then the consequences become a bit harsher.  You could spend 1 year in county jail, pay a $1,000 fine, and expect to be forced to complete a state-approved California DUI school for a period of anywhere from 18 to 30 months.


Richmond Man Arrested on Suspicion of DUI (CA Vehicle Code 23152)

Allegedly, a 29-year-old man from Richmond was driving while under the influence of alcohol when he failed to notice the large fire truck right in front of him.  The man supposedly crashed into the fire truck, which was in the slow lane because it was parked there for fire fighters to attend to the scene of another wreck on the freeway.  California Highway Patrol officers were also on the scene and were able to immediately respond when the Richmond man slammed into the stationary fire truck.  He was arrested on suspicion of DUI, after receiving treatment for his injuries.

A DUI conviction in California is a serious matter indeed.  Of course, you should never drive while intoxicated, which, as defined by law, is having a BAC, or blood alcohol content of .08 or higher.   However, DUIs are, in California, what are known as ‘priorable’ offenses, meaning that for a 10-year ‘lookback’ period, prior offenses can be taken into account in court (CA Vehicle Code 23152).

A first offense DUI is likely to end in a 30-day suspension of your driver’s license, a $1,000 fine, and anywhere from 4 days to 6 months in jail.  However, a second offense may mean up to 1 year in prison, a 2-year license suspension, and an $1,800 fine.  The penalties for a third offense include up to 1 year in jail, an $1,8000 fine, and a 3-year license suspension.

Most importantly, when the Richmond man hit the fire truck, one of the firemen was seated in the driver’s seat.  He was injured, although not badly.  This may trigger a felony-level DUI, considering that when any personal injury is involved, the crime becomes more serious.  This is what is known as an enhanced penalty; other enhanced penalties include speeding or reckless driving, child endangerment, and having a high blood alcohol concentration.

Petaluma Driver Arrested for 5th DUI in 10 Years (CA Vehicle Code 23152(a))

Driving while under the influence of alcohol is a serious violation of California law, and most people know that breaking that particular law has equally serious consequences.  There are different penalties for a 1st, 2nd, and 3rd offense DUI.  But what happens when you receive, as a 39-year-old man from Petaluma has, your 5th DUI charge in 10 years time?

The legal term ‘priorable’ is nearly unique to California law and DUIs are what are known as ‘priorable’ offenses.  What this really means is that one offense builds on another, causing increases in punishments and other consequences as they snowball.  California prosecutors are allowed to consider any DUI convictions that occur within a 10-year period (often called a “lookback” period) even convictions that took place in other states, but would, according to California law, be considered a DUI and any DUI charges that have been pled down to “wet reckless” convictions.  Below are some simple facts that you need to know if you have been arrested for your 2nd, 3rd, 4th, etc. DUI (CA Vehicle Code 23152(a)).

A first offense DUI conviction often results in informal probation, small fines (up to $1,000), forcible completion of a state-approved alcohol or drug abuse program, and a maximum 10-month suspension of one’s driver’s license.  If a second DUI conviction occurs, a minimum county jail sentence is added (96 hours to 1 year), state-approved DUI school is required, and the period of suspension of one’s driver’s license goes up to 2 years.  A third conviction will likely mean a 120-day  to one-year stint in county jail, additional fines, another shot at DUI school, a 3-year suspension of one’s driver’s license, and will earn an individual the distinction of being considered a ‘habitual traffic offender’ by the Department of Motor Vehicles.

Although a 5th DUI conviction occurring within the 10-year lookback period is certainly rare, there are provisions for situations like this in CA Vehicle Code 23550.5.  In this case, the Petaluma man is likely to have his driver’s license revoked for at least a period of 4 years and will have to prove to the court that he is financially responsible and has completed DUI courses in order to regain the right to drive at all.  Additionally, he will certainly spend some time in county jail, probably 4 years.

Sebastopol Mother Faces Felony Charges for Second DUI Offense While on Probation (CA Vehicle Code 23152(a))

For some people, family relationships are difficult, especially around the holidays.  But, this Thanksgiving, you can be sure that one Sebastopol mother won’t be celebrating with her son.  The son was in his 1939 classic Ford Cabriolet when he was nearly run off of Stony Point Road by a woman he did not immediately recognize.  After following her, and contacting officers with the California Highway Patrol, he discovered that the driver of the silver car that caused him so much grief was none other than his own mother.  When police arrived at his mother’s home, she was given a field sobriety test, which she failed.  She was already on probation for a DUI she received in July and her license was still under suspension.  She was arrested on charges of a felony DUI, driving without car insurance, violation of her probation, and driving with a suspended license.

In California, DUI charges are taken very seriously; they are considered ‘priorable’ offenses, meaning that one conviction can pile up on another, so to speak (CA Vehicle Code 23152(a)).  Each time you are convicted of a DUI, the penalties become more and more severe.  This being her second DUI in 3 months, a second conviction will mean a felony offense and she will have to contend with some harsh consequences.  First, she will be subject to up to 5 years of probation and a maximum sentence of 1 year in county jail.  She will also be subject to up to $1,000 in fines and completion of a stint in an approved California DUI school.  Additionally, her driver’s license will likely be suspended for another 2-year period.

Sunnyvale Resident Arrested on Suspicion of DUI (CA Vehicle Code 23152(a) and 23152(b))

19-year-old Sunnyvale resident (name withheld in order to protect the privacy of the accused) was driving his 2007 Nissan Maxima down East Bayshore Road at Laura Lane when he accidentally hit and killed a 67-year-old man.  He was allegedly operating his vehicle under the influence and did not see the other driver, who was taking a morning walk when he was struck at 6:15 a.m.  The crash was enough to send the Nissan flying off onto the side of the road where it came to a stop after hitting a pole and flipping over.  He was arrested on suspicion of DUI, vehicular manslaughter, and driving without a license (CA Vehicle Code 12500).  He did not flee the scene, but remained with Williams’s body until local law enforcement arrived.

According to California law, vehicular manslaughter that occurs because an individual was either drunk or under the influence of drugs (CA Penal Code 23152(a) and 23152(b)) while driving is considered a case of ‘gross negligence’ (CA Penal Code 191.5(a), “gross vehicular manslaughter while intoxicated”).  In other words, if you have already committed the crime of driving under the influence and then also commit some other kind of minor illegal act, then your negligence is considered to be greater than could normally be expected (‘ordinary negligence’) it increases to ‘gross’ negligence.  If someone loses his or her life because of your actions, then your situation becomes serious indeed.

In California, the penalties for violating CA PC 191.5(a) are determined in relation to the specific facts of the case at hand.  Technically, this crime is a ‘wobbler,’ meaning that prosecutors may choose at will whether to treat it as a misdemeanor or as a felony charge.  If convicted of a misdemeanor like this, you may face up to 1 year in county jail.  However, if you are convicted of a felony of this nature, you can expect to spend anywhere from 16 months to 4 years in a California State prison.  In either case, your driver’s license will, at the very least, be suspended.


Cell Phone Driving Death Ends in Jail Time for Rohnert Park Resident (CA Vehicle Code 23152(a) and 23152(b))

We often hear stories of persons who are arrested on DUI charges (CA Vehicle Code 23152(a) and 23152(b)) that result in someone’s death or serious injury.  However, California law enforcement officials have been cracking down on, not just driving while under the influence, but also driving while distracted.  One recent example of this is the accident for his part in which 30-year-old Rohnert Park resident (name withheld in order to protect the privacy of the accused) has just been sentenced to 1 year in county jail.  He ran into a car on Highway 12 and accidentally caused the death of two occupants in another car.  It seems that he wasn’t texting or even talking on his cell phone.  He says that he simply looked down for just a moment to check an incoming text message and didn’t see the other car.  He was driving a GMC Sierra pickup truck at 53 miles per hour and the other vehicle was a Toyota Camry.  He has also been given 3 years felony probation and been forced to pay upwards of $1 million in restitution to the family of the victims.

In this case, just a few moments of looking downward has changed his life forever.  In California, ‘distracted driving’ laws place a ban on the use of hand held cellular phones or similar devices and on texting while driving (see Senate Bill 1310). This means not only jail time, but also a 3-year drivers license suspension and felony probation.  While on probation, he will not be allowed to consume either drugs or alcohol and will even be banned from entering bars and other places where alcohol is the chief thing for sale.  Violation of the terms of his probation will result in a 12 year and 4 month sentence in state prison.