Anyone who is charged with a DUI in the state of Florida is facing serious penalties. Not only will a conviction result in a jail sentence, loss of their driver’s license, the payment of fines, possible counseling, and additional probation requirements. Depending on the circumstances, including how high their blood alcohol reading is, how many prior DUIs or chemical test refusals they’ve had, and whether anyone was injured, penalties become more severe. For most defendants, being marked with a public record as a convicted drunk driver carries a social stigma that can follow them for life.
Generally, a first-offense DUI with a relatively low blood alcohol level (BAC) reading will not trigger removal proceedings for someone who is not a U.S. citizen. However, in some circumstances, a non-citizen who is convicted of a DUI will face all the same prospective penalties plus the possibility that their DUI conviction might result in their deportation, refusal of adjustment of status, or denial of citizenship. It depends on the facts of the case.
When Can a DUI Have Immigration Consequences?
The federal law provides for the Department of Justice to conduct removal (deportation) proceedings against any non-citizen within the United States who is convicted of an “aggravated felony” or “a crime involving moral turpitude.” This includes almost every drug crime except a first offense of possession of a small amount of marijuana.
While most DUIs in Florida will remain misdemeanors and will not impact the immigration status of a resident non-citizen, any of the following circumstances can cause the government to initiate detention and removal proceedings:
- Any drug-related DUI (under the influence of a controlled substance, not alcohol)
- Any felony DUI
- A person other than the driver was seriously injured due to defendant’s driving under the influence (if deemed “reckless,” not merely negligence as with typical DUI)
- A person other than the driver is killed due to the defendant’s driving under the influence, (if deemed “reckless,” not merely negligence as with typical DUI),
- 3rd conviction within 10 years
- Fourth offense DUI
- A first offense DUI but prior marijuana conviction not resulting in deportation,
- Prior record of other criminal convictions
Learn More > How Criminal Charges Can Impact Immigration Status
What’s an Aggravated Felony?
While the term “aggravated felony” once included only crimes like murder, rape, robbery, and drug trafficking offenses, Congress has expanded the list of aggravated felonies to now include more than thirty crimes, many of which are neither aggravated nor felonies. Instead, the list of possibly deportable aggravated felonies includes the following crimes if the sentence imposed is one year or more; any crime of violence, simple assault, obstructing justice, theft, or receipt of stolen property.
Until 2004, the U.S. Immigration authorities considered DUI where someone was seriously injured to be an aggravated felony. Then, in the case of Leocal v. Ashcroft, 543 U.S. 1 (2004), the United States Supreme Court held that a “crime of violence” required the defendant to anticipate using force or violence against another person. In DUI cases, under Florida law, the harm caused to the victim was not anticipated and inflicted intentionally, but it was the result of mere negligence. Therefore, the Supreme Court held that DUI could not be an “aggravated felony,” even with injury to another person under the law as it was written.
Other crimes become “aggravated felonies” if they involve $10,000 or more. For example, if $10,000 or more is involved in the commission of tax evasion, fraud, or money laundering, then the defendant is considered subject to removal proceedings.
Is DUI a Crime of Moral Turpitude?
Depending on the circumstances of the case, a DUI may be deemed a crime of moral turpitude. Crimes of moral turpitude are those which involve depravity, dishonesty, and deceit. The typical misdemeanor DUI without other remarkable circumstances is unlikely to view as having involved moral turpitude. But driving on a suspended license can be a crime of moral turpitude. If you drive while your license is suspended because of a DUI, you may well risk immigration consequences.
The act of operating a motor vehicle when you know your license is suspended is intentionally engaging in an act of risk to public safety despite being legally prohibited from doing so. Such offenses are the stuff of what “moral turpitude” offenses are made from.
Non-Citizens Must Defend Against DUI Charges
Anyone whose immigration status in the United States is at all at risk from a DUI or any criminal conviction must engage an experienced DUI defense lawyer who knows all the immigration consequences that can result from an unfavorable disposition.
For example, if a DUI prosecution involves allegations that the defendant was driving while under the influence of opiates, based on evidence from blood or urine tests, or even based only on police observations, it is imperative to avoid a finding of guilt. Depending on the strength of the evidence and the client’s previous involvement with police, skilled counsel will consider negotiating with the prosecutor to amend the charge from one based on drugs to one involving alcohol.
DUI Defenses In All Cases
Whether our client is a citizen, a resident non-citizen, or an undocumented immigrant, our mission is to commit all our efforts to protect their rights and resist the prosecution from obtaining an unjust conviction.
Before anyone can be found guilty of DUI in Florida, the prosecution must prove beyond a reasonable doubt that they were driving or in physical possession of a motor vehicle, either
- while under the influence of alcohol or another chemical substance (drug) to the extent that their normal faculties were impaired, or
- with a blood/breath alcohol content (BAC) of .08 or higher.
Before the breathalyzer or other substantive evidence is admitted into evidence, the prosecutor must first provide evidence that establishes the following:
- the officer had reasonable, articulable ground to make the traffic stop,
- the officer details the grounds on which they based a reasonable suspicion that the defendant was under the influence of alcohol or another substance,
- if the defendant performed roadside field sobriety tests,
- did the office administer each field sobriety test according to the required protocol?
- were the weather, lighting, and ground conditions appropriate for the tests to be safely and effectively conducted?
- did the officer score the cues properly?
- do the bodycam and dashcam videos support the officer’s version of events?
- was the defendant properly informed of their rights for use before a breathalyzer?
- did the officer observe the defendant continuously for the required time before administering the breath test?
- is the machine certified and properly calibrated?
- is the officer properly trained and certified to operate the breathalyzer?
As you see, there is a lot more to defending a DUI case effectively than just reading a breathalyzer result. Many breathalyzer machine results are never admitted into evidence because of some flaw or error made by the police.
If you have been charged with a DUI and are not a citizen of the United States, call Tampa’s experienced DUI defense attorneys at Stechschulte Nell immediately; 813-280-1244.
