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¡No Se Deje!
After practicing law for 33 years, I have concluded that the vast majority of criminal cases against immigrants involve “drunk driving”. In California and other states, the crime is called “driving under the influence” of alcohol or drugs. This means that a driver does not have to be drunk to violate the law. It is illegal to drive if the driver’s ability to drive safely is impaired by alcohol or drugs. And, if the alcohol content in the blood is .08% or more, it is presumed that the driver is impaired and is guilty of driving under the influence.
Drunk driving convictions are very important to immigrants because in some circumstances, these convictions can be grounds for deportation. Under Federal Immigration law, even permanent legal residents who have lived here for many years can be deported if they are convicted of 2 or more misdemeanors (minor crimes) involving moral turpitude. Simple drunk driving convictions are not moral turpitude crimes for deportation purposes. However, if the drunk driving caused an accident in which someone was injured, an assault charge or other crime of violence can also be filed. In this case, a conviction can lead to deportation. Also, if an immigrant is convicted of drunk driving when he knows that his driver’s license is suspended, the crime is a crime of moral turpitude and a deportable conviction.
In California, drivers can have their blood alcohol level tested by either a blood test or a breath test. The blood test measures the amount of alcohol in the blood. The breath test is performed using a breathalyzer. Breath samples are examined and a mathematical formula is used to determine the amount of alcohol in the blood. Experts have reported that the results of the breath test are not always accurate and can vary depending on the person’s medical condition, gender, temperature, the atmospheric pressure, and condition of the particular measuring device. Because of this, the California Supreme Court recently ruled that people accused of drunk driving can dispute the results of breathalyzer tests. This can be done by presenting evidence that contradicts a finding of intoxication. This can include evidence that the defendant has a higher tolerance for alcohol or that he was able to perform the field sobriety test well.
Unless you are a United States Citizen, you are subject to deportation for certain criminal convictions. Even if you have been a legal permanent resident for decades, certain criminal convictions will get you deported. All non-citizens that are arrested and charged with a crime should immediately consult with an experienced criminal defense attorney that is also experienced in immigration law. Immigrants should insist on a separate written statement from his/her criminal defense attorney which explains whether or not there will be any immigration status consequences from the proposed action. If the defense attorney recommends that the immigrant should plead guilty, the attorney should indicate if that guilty plea will constitute grounds for deportation.
Sometimes defense attorneys can persuade prosecutors to allow the immigrant to plead guilty to a different crime or to serve 364 days instead of one year (365 days) to avoid deportation. ¡NO SE DEJE! ®
JESS J. ARAUJO, ESQ.