Many of my clients throughout my career have not been citizens of the United States, but rather green card or visa holders. Naturally, one of the most common questions of these clients is whether a driving under the influence charge will affect their immigration status.
Section 237 of the INA describes the crimes for which a noncitizen may be deported. Although, the INA does not specifically designate driving under the influence as a deportable offense, a DUI may fall within a category of crime that is deportable. The categories for which a DUI may fall under as a deportable offense according to the INA are aggravated felonies, crimes of moral turpitude, and controlled substance offenses.
Initially DUIs were considered crimes of violence and were therefore considered aggravated felonies for purposes of deportation. The United States Supreme Court has since changed the legal stance on this issue with its 2004 decision in Leocal v. Ashcroft. The Court, in its decision, focused on the lack of any specific intent to harm another in determining that a DUI is not a “crime of violence” and, thus not an aggravated felony. The Court also stated that a “crime of violence” is one that includes “a higher degree of intent than negligent or merely accidental conduct.” Therefore, a DUI conviction is not a crime for which a legal alien can be deported for.
Generally, a simple DUI is not a crime involving moral turpitude. Although vague, the term “moral turpitude” has been interpreted as shocking the public conscience or acts that are considered wrong by society’s standards. In determining whether a crime shocks the public conscience, the court will look to aggravating factors such as guilty mental state. As with DUIs falling into the category of “aggravated felony,” DUI do not require any specific guilty intent. If, however, the DUI is coupled with another offense that does require a guilty intent, the DUI could become a deportable offense. For example, if someone is arrested for driving under the influence while their license is suspended, it may be considered a crime of moral turpitude if the person knew their license was suspended and drove drunk anyways.
Many DUI cases involve driving under the influence of drugs rather than alcohol. Whether a DUI becomes a deportable offense depends on whether the drug causing the intoxication is listed in the Controlled Substances Act. The list of controlled substances is too comprehensive to list here. However, you can find the list here.