While most non-US citizens are generally aware that being convicted of a major crime may render them deportable, many will often underestimate the impact of certain traffic offenses on their immigration status. In New Jersey, for example, there is a traffic offense that is often charged as a companion offense to criminal offenses involving drugs, namely, 39:4-49.1 Drug Possession by Motor Vehicle Operator. This particular offense can be particularly virulent to a non-citizen because it is often dismissed as a something that is not criminal when, in fact, it is actually quite nasty.
The Offense
Title 39:4-49.1 states:
No person shall operate a motor vehicle on any highway while knowingly having in his possession or in the motor vehicle while knowingly having in his possession or in the motor vehicle any controlled dangerous substance as classified in Schedules I, II, III, IV, and V of the “New Jersey Controlled Dangerous Substances Act, ” P.L. 1970, c. 226 (C. 24:21-1 et. seq.) or any prescription legend drug, unless the person has obtained the substance or drug from, or on a valid written prescription of, a duly licensed physician, veterinarian, dentist or other medical professional licensed to write prescriptions intended for the treatment or prevention of disease in man or animals or unless the person possesses a controlled dangerous substance pursuant to a lawful order of a practitioner or lawfully possesses a Schedule V substance.
L. 1964, c. 289, s. 1. Amended by L. 1985, c. 239, s. 1, eff. July 17, 1985
What are the penalties?
The penalties can be harsh. The statute provides that a violator will be subject to a fine no less than $50 and shall forthwith forfeit his right to operate a motor vehicle for a period of two years from the date of his conviction.
Immigration Consequences of Possession of Drugs in a Car
An offense does not necessarily have to be considered a felony in order for grave immigration consequences to attach. Misdemeanors as well as several traffic offenses often do affect one’s immigration status. This is because immigration is federally regulated, so how a state classifies an offense is not necessarily controlling. Those who are not US citizens should be aware that any controlled substance offense-no matter how “minor”-can potentially impact one’s ability not only to stay here but also to re-enter the country. Some provisions of the Immigration and Nationality Act that are potentially applicable to this type of offense include Section 237(a)(2)(B)(i) regarding deportability and Section 212(a)(2)(A)(i)(II), regarding to inadmissibility. In short, both sections pertain to violations of laws relating to controlled substances as defined in 21 USC § 802. There are important differences between the two but the point is that 39:4-49.1 could potentially fall under these sections.
What next?
Obviously, anyone facing these charges should recruit the services of a skilled criminal defense attorney as well as crimmigration attorney fluent with both criminal as well as immigration defense. There may be “safe havens” that may be applicable or alternative ways of disposing of this charge that lighten or mitigate the immigration impact.
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