We receive many calls from people who have received DUI charges in Tucson and greater southern and central Arizona. Many of our DUI callers are not citizens of the United States. Quite a few are legal permanent residents (LPR’s or “green card” holders), some of whom have lived in the United States for 30 years or more. Others are visa holders including F-1, F-2 (student visas and spouses), H-1B, J-1, O-1, TN, or other professional and investment related visas. Some are DACA beneficiaries; and some have no status at all, having either entered without inspection or having overstayed their visas.
What follows is quick guide that focuses upon the immigration consequences of Arizona DUI’s for LPR’s, VISA holders, and DACA recipients.
Determining the Nature of DUI charges in Arizona
First, to determine immigration consequences, it is important to understand what precise charges you have received. Arizona has some of the toughest DUI laws in the nation. Everyone convicted of a DUI in this state is subject to mandatory jail time, fines, license restrictions or suspensions, and a criminal record. Prosecutors and police may execute strict enforcement policies for all drivers.
Consequently, there are several types, and levels, of DUI-related charges in Arizona, some of which can affect non-citizens and immigrants more than others. So, the first thing to do is figure out exactly what type of DUI charges you have received.
A simple non-accident misdemeanor DUI charged under ARS §28-1381, is the most common. This is charged if there is evidence that the driver is “impaired to the slightest degree,” a very low standard. It is also charged, as a second count (1381(a)(2) if the blood or breath alcohol tests report an alcohol level above a .08.
However, a more serious DUI charge in Arizona is misdemeanor Extreme DUI, ARS §28-1382, if the alcohol concentration is above a .15. If convicted, the person faces additional mandatory jail time, heavier fines, and fees.
If there is an accident, however, even with a regular 1381 DUI or an extreme 1382 DUI, a person can also be charged also with criminal damage ARS § 13-1602, or endangerment ARS §13-1202. These additional charges can by themselves have an affect on immigration or visa status.
Moreover, where there is a serious accident, or the driver has children under 15 in the car at the time of the DUI, or had a suspended license at the time of the DUI, or had two prior DUI’s in the last seven years, the matter can be charged as a felony.
Determining your Immigration Status
Second, it is important to identify for us your immigration status and certain dates related to it. Most people we receive calls from have in the past used the services of an immigration attorney or organization, and are familiar with the basic terminology and categories: Legal Permanent Resident (LPR); VISA holder (F-1, H1B, J-1, )-1, etc); DACA recipient. Different Arizona DUI charges affect different immigration status holders in different ways.
Generally, long term legal permanent residents (more than five years with a green card), with no prior criminal record, are often in better positions when crimes are charged, than those who have just received green cards in the last few years, or those Visa holders, or DACA recipients.
Legal Permanent Residents (LPR’s) and non-accident misdemeanor DUI’s
The good news is that for LPR’s, one single non-accident misdemeanor DUI , ARS 28-1381 or 1382 alone is not currently considered a deportable offense under the federal statutes.
However, if there is an accident, and there are charges such as criminal damage 13-602 or endangerment 13-1202, or if charged as a felony, described above, a person who is an LPR can become deportable. The length of time a person has had a green card could become important, as would the time since the person’s last “entry” into the United States.
Furthermore, a legal permanent resident, even with a simple non-accident single misdemeanor DUI ARS 28-1381 will generally have difficulty obtaining citizenship within five years after most convictions because an applicant for naturalization must show “good moral character.”
An applicant with only one misdemeanor DUI charge in the last five years could still be able to meet that standard, but because this is a discretionary determination, the way the case is charged and resolved may affect citizenship eligibility, even for misdemeanor offenses, and especially if there are multiple offenses or the conviction is recent.
Visa holders and DUI
The bad news is that non-immigrant visa holders are particularly vulnerable to immigration consequences if they are charged or convicted of a DUI while in the U.S., even non accident simple Arizona misdemeanor DUI ARS §28-1381.
Current Visa Holders
Once you are arrested for a DUI, the information regarding your arrest is made available to all the agencies involved in granting immigration benefits. Upon receiving this information, the State Department could revoke your visa and require that you re-apply. If your visa is not revoked, you will still face increased scrutiny when you re-enter the U.S. and the Customs and Border Patrol (CBP) inspectors will need time to determine that you are still eligible for the visa. CBP will usually still allow non-immigrant visa holders with only one misdemeanor DUI to enter the U.S., but expect lengthy delays and an interview in secondary inspection. Having proof of the disposition of your charge will help minimize the delay. Travelers with multiple DUIs (even if the prior conviction was in your home country) or with other charges in conjunction with your DUI, could be denied entry and returned to their home country (often after a night in detention).
ESTA (Visa Waiver) Travelers
If you travel to the U.S. on an ESTA authorization (Visa Waiver countries such as the U.K. and Australia) and receive a DUI, it is very possible you will receive a revocation notice of your ESTA authorization. If your ESTA is revoked, you will need to apply for a tourist visa at a U.S. Embassy or Consulate abroad and will be subject to the screening detailed in the section below. Even if you do not receive a notice of ESTA revocation, it is possible that the next time you check in for your flight the airlines will refuse to board you without a visa or that immigration officials at the port of entry in the U.S. could deny your entry. At a minimum, you will be sent to secondary inspection and face long delays each time you enter the U.S. It is also possible that CBP will allow you to enter for the current trip, but advise you that you will not be admitted for future travel unless you obtain a visa.
Although Canadian visitors are not required to have an ESTA authorization, CBP officials at the port of entry or at the pre-clearance inspection station in Canada will have to determine whether you are still eligible to enter the U.S.
Having the proper documentation regarding your conviction and sentence, or proof that the charges were dismissed, can help to mitigate these hassles and inconveniences.
Visa Applications or Renewals After A DUI
If you were denied entry, your visa or ESTA application was revoked, or you were advised by CBP that you needed to obtain a visa for future travel, you will need to apply for a visa at a U.S. Embassy or Consulate. If you are renewing your visa, but had a DUI arrest since your last visa was issued, you will also be subjected to extra scrutiny.
The DUI itself is not a visa ineligibility, but could be an indicator of a medical visa ineligibility because a DUI is considered “harmful behavior”related to substance abuse. Of course, any other charges related to the DUI, could result in criminal visa ineligibilities.
A consular officer is required to refer the following visa applicants for a full medical exam prior to issuing a visa:
- Applicants with a single alcohol related arrest or conviction in the last five years
- Applicants with two or more alcohol related arrests or convictions in the last ten years or
- Any evidence to suggest an applicant has an alcohol problem (ex. you were charged with only vandalism, but you were intoxicated when you committed the crime)
These screening procedures are applicable regardless of the country in which the DUI arrest or conviction occurred.
You cannot obtain this medical exam prior to the visa interview. After the interview, the consular officer will refer you to an embassy-approved physician and this exam can be very costly.
Ultimately, a consular officer must be convinced that a visa applicant will obey U.S. laws while traveling in the U.S. on their visa. A very recent or egregious DUI, or multiple DUIs (even if expunged), could still result in a visa denial.
Because there are so many variables related to DUIs and visa eligibility, and expungement has no relevancy to visa eligibility, this is a very specialized area of law, therefore it is important to choose a criminal defense attorney who understands the nuances of DUI consequences for visa holders.
DACA and DUI
The news is also particularly bad for DACA holders. A DUI conviction is considered a “significant misdemeanor” for the purposes of DACA status, therefore if convicted of a DUI, even a single non-accident misdemeanor DUI ARS 28-1381, it is likely a DACA recipients will lose their status and face deportation. Even if you are convicted of a lesser charge, DACA is a discretionary benefit and therefore the way that the case is charged and resolved can affect your eligibility for DACA. Because of the very serious consequences of a DUI for DACA recipients, it is important for DACA recipients to contact an attorney that is experienced in mitigating both the criminal and immigration consequences of DUIs.
To ensure that the immigration consequences of your DUI charge are given full consideration, any non-US citizen charged with a DUI, including legal permanent residents, should consult an experienced criminal defense attorney familiar with immigration consequences of DUIs.
In short, if you are not a United States Citizen and receive a DUI you should probably first determine the precise type of Arizona DUI charges, and of course identify your immigration status. The nature of the charges, as you can see, can have different impacts on LPR’s, Visa holders, and DACA recipients
I hope this short guide has been helpful.