One of the most pressing and urgent concerns that undocumented individuals have is what will happen to them if they are stopped for driving without a license. Given the increase in enforcement under the Trump Administration, these fears are not unjustified. In New Jersey, driving without a license is a traffic offense punishable under Title 39:3-10 and often referred to as “Unlicensed Driver.” The statute provides for two distinct penalties depending on whether the defendant was ever licensed elsewhere:
•· If an individual pleads or is found guilty of subsection a, he or she shall be subject to a fine not exceeding $500 or imprisonment in the country jail for not more than 60 days
•· If an individual pleads or is found guilty of subsection b, he or she shall be subject to a fine not less than $200 and be barred from applying a license for not less than 180 days. Subsection b applies when a person has never been licensed in New Jersey or any other jurisdiction
It goes without saying that undocumented people who do not have valid driver licenses should not be on the road. Driving in violation of the law not only poses a risk of danger to others but also, for an undocumented individual, exponentially increases his/her exposure. Practically speaking, since this is a traffic offense, a police officer will ordinarily issue a traffic summons to the individual, absent any egregious circumstances and assuming there are no serious companion offenses charged. However, this does not mean that the individual is out of the proverbial woods. These types of offenses are routinely designated as “Court Appearance Required” type of tickets-meaning that a court appearance is mandatory. As recent news events have confirmed, ICE officers have been known to appear at local municipal courts to pick up out of status individuals.
Secondly, even if a defendant does not run into an immigration officer at the courthouse does not necessarily mean that he/she will not encounter immigration. This is especially true if the individual is sentenced to imprisonment. Remember that subsection a provides for a jail sentence up to 60 days. While a prosecutor or judge may not go for a full 60 days, it is no longer unheard of for a defendant to receive 10 days or more in jail in some courts as a deterrent or if this is not a first offense. If the defendant goes to a county jail, his or her information will have to be entered into the jail database. The information is potentially then shared and discoverable by Immigration and Customs Enforcement through the Secure Communities Program.
Effect of 287g
In the future, the stakes may become even more perilous. President Trump has not only called for the resurrection of Secure Communities but also the nationalization of 287g. 287g is a federal provision of the Immigration and Nationality Act that authorizes the government to train and deputize state and local law enforcement to enforce the immigration law. Police officers who are deputized under this agreement have the authority not only to inquire into an individual’s immigration status but also place that person into removal proceedings by issuing a Notice to Appear (NTA). Once and if 287g becomes standard throughout New Jersey, an authorized officer who stops someone for driving without a license would also be entitled to check DHS databases and charge the person with deportability, something far worse than the initial traffic violation for which the person was stopped.
Given the magnitude of events that can easily flow out of a simple traffic ticket, a foreign national charged with Unlicensed Driver in New Jersey would do well to consult with an immigration attorney if there are any potential status issues.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.