For many people from other countries, becoming a United States citizen is a long-held dream. Arriving in the United States has brought you one step closer to your dream being realized. Therefore, if accused of doing something against the law, you may be devastated, believing that your dream is dashed and you may never become a citizen. However, that may not be the case. The American legal system can be confusing even for natural citizens of the United States, so it is not surprising that immigrants may sometimes struggle to understand it. A driving under the influence (DUI) arrest may not cost you your chance at a green card or ultimately becoming a citizen. How exactly does a DUI arrest affect your immigration application? There are many factors to consider. If you have been arrested for a DUI and are concerned about what may happen as a result, you may want to speak with one of our New York criminal attorneys at the Law Office of Benjamin Greenwald. Call (845) 567-4820 to schedule a consultation and review your case.
What Is a DUI Arrest?
In the United States, driving while intoxicated (DWI) or driving under the influence of alcohol or drugs is a crime. The New York Department of Motor Vehicles defines several driving under the influence offenses for which one can be arrested and ultimately convicted, and the different blood alcohol content levels (BAC) that can be evidence of DUI. A BAC of .05% is considered legal evidence the individual is impaired, .08% is considered evidence of being intoxicated, and .18% or higher provides evidence of aggravated driving while intoxicated. However, even without this evidence, an individual may still be arrested for DWI or DUI. Individuals should understand the difference between being arrested for driving under the influence and being convicted for it.
DUI Arrest
A DUI arrest occurs when a law enforcement officer has reasonable suspicion that a driver is driving under the influence, pulls the driver over, and through additional evidence (empty alcohol bottles or cans, the smell of alcohol on the driver’s breath, an open alcohol container, etc.), field sobriety tests, or a blood alcohol content test such as a breathalyzer, determines the driver is under the influence.
If arrested, the driver is taken into custody. The law enforcement officer will take them to the police station or local jail and take them through the booking process of recording their personal information, taking their fingerprints, and taking their photo. Then, the driver is placed in a jail cell to await their initial appearance before the judge, also known as an arraignment. The judge will explain the charges against the driver and decide whether they can be released on bail or must stay in custody. Despite this time spent in a jail cell, it is important to note that an arrest is not the same as a conviction.
DUI Conviction
A DUI conviction happens after there has been an arrest and a trial or plea agreement. After a driver has been arrested for a DUI and made their first appearance, there are a series of court proceedings related to the charges against them. These proceedings include pre-trial hearings and if necessary, the trial itself. In some cases, the driver and/or their lawyer, if they have one, may talk to the prosecutor and be able to arrange a plea agreement. Plea agreements typically include reduced charges in exchange for a guilty plea. A guilty plea as part of a plea agreement or given directly by the driver to the judge, or being found guilty by a judge or jury, results in a conviction.
Immigrants may be told by friends or family that agreeing to a plea agreement is a good idea. While this may sometimes be true for United States citizens, it is not necessarily the case for immigrants. While a DUI arrest may not impact their immigration application, a conviction has a much higher chance of affecting their application. Therefore, it is important that immigrants consider speaking with a criminal attorney about their case before agreeing to a plea agreement or acknowledging guilt in any way before the court.
What Are the Requirements for an Immigrant To Become a Citizen?
There are several requirements immigrants must meet to become a United States citizen. Being at least 18 years old, physically present in the United States for a specific amount of time, a grasp of English and Civics knowledge, and an attachment to the United States Constitution are a few. However, the requirement most likely to be affected by a DUI arrest is that the individual must have good moral character.
What Is Good Moral Character?
The United States Citizenship and Immigration Services (USCIS) determines good moral character based on laws Congress has passed. While it is difficult to provide specific things that define good moral character, it is generally considered to be the same moral character as the average United States citizen. This is generally agreed to be things such as following the laws and not harming others.
There are some specific factors that the USCIS looks at when determining an individual’s moral character: their criminal record and their honesty.
Criminal Record
Having a criminal record is not necessarily going to result in an immediate denial of an immigration application. Some offenses are only temporary bars to an application being approved. For those offenses, it is often simply a matter of the offense being a specific number of years in the past before the individual can apply for naturalization or citizenship.
However, some offenses, are immediate grounds for a denial. Murder or other aggravated felonies disqualify the individual from gaining citizenship. Convictions of this nature make it impossible for the individual to prove they are a person of good moral character, per the USCIS’s A Guide to Naturalization.
Interview Honesty
Individuals may be tempted to lie about their criminal record or other things in an attempt to ensure their immigration application is approved. If they do and the lie is found before approving the application, the USCIS will deny their application on the grounds of lacking good moral character. If the individual lies, but has been granted naturalization before the lie is found, the USCIS will take their citizenship back. This may result in deportation. Therefore, it is critical that individuals are completely honest on their application and during their interview to have the highest chances of approval.
How Might a DUI Arrest Imply a Lack of Moral Character?
A single DUI arrest by itself may not imply a lack of moral character. However, other potential factors involved in the arrest and any charges filed may be used to indicate the individual’s lack of moral character. For example, driving under the influence of alcohol has a lower chance of impacting an immigration application than driving under the influence of a controlled substance. You may want to speak with a knowledgeable DUI/DWI attorney with the Law Office of Benjamin Greenwald if your case includes any of the following:
- A claim that the DUI was done with the intent to harm another
- If the DUI violated any controlled substance laws of the United States, any specific state, or any foreign country
- If the DUI is being used to show a pattern of habitual drunkenness (if it is not the first DUI, if it is being used as evidence that the individual is an unfit parent in a divorce case combined with other evidence of habitual drinking)
- If the individual lied about the DUI to gain immigration benefits
- If the individual is convicted and confined to jail or prison for 180 days or more in the past three to five years
- If the individual has failed to complete any probation, parole, or suspended sentence associated with the DUI before applying for naturalization
Does Immigration Status Matter?
There are many ways an immigrant can be in the United States. Some of them result in a clear immigration status while others do not. Therefore, it is logical for one to wonder if immigration status makes a difference when arrested for a DUI.
No Immigration Status
If the individual has no immigration status or their authorized period of status has ended (staying past the expiration of a visa, for example), they may be flagged when fingerprinted. The New York State Unified Court System explains that when an individual is arrested and fingerprinted, their fingerprints are sent to Immigration and Customs Enforcement (ICE). If ICE believes they may be able to deport the individual, they will send a detainer to the law enforcement office that has arrested the individual. This detainer means the individual may not be released from jail even if they would be otherwise. Additionally, it may require law enforcement to notify ICE before releasing the individual from jail so that ICE may arrest them upon release.
If this happens, the individual may be deported. If they are not, it may prevent them from getting an immigration status in the future.
Lawful Immigration Status
If the individual has a lawful immigration status, being arrested for a DUI may cost them their current status. A DUI arrest could prevent a permanent resident from renewing their green card or prevent them from changing their status in the future, including the ability to become a citizen.
Regardless of immigration status, it is important to be aware that ICE cannot arrest individuals in or on New York State courthouse property. Additionally, unless they have a warrant signed by a judge, ICE cannot arrest the individual while they are going to, remaining at, or returning from court.
Will a Citizen’s DUI Arrest Affect Their Immigrant Spouse’s Application?
Another concern one immigrating to the United States may have is whether their spouse, who is a United States citizen, can affect their immigration application if they have a DUI arrest. Typically, a citizen who is sponsoring their immigrant spouse will not have a negative impact on the spouse’s application if they are arrested for DUI. This is because it is the individual applying whose moral character matters.
However, if the United States citizen spouse is convicted and goes to prison for DUI, it may be possible for this to impact their spouse’s application. In this situation, being imprisoned affects the individual’s ability to be in a bona fide marriage as well as to financially support their spouse, and that can put the spouse’s application in jeopardy.
How Can a Criminal Attorney Assist You?
If you have been arrested for a DUI and have an application pending for immigration, or are planning to apply, you may want to consult with an attorney. A skilled Orange County New York criminal attorney like the ones at The Law Office of Benjamin Greenwald may be able to assist you with determining whether the charges may cause ICE to try to deport you, reducing or dismissing the charges, and understanding your legal options. Call (845) 567-4820 to schedule a consultation and review your case.
