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Can Drunk Driving in a School Zone Cause Deportation or Immigration Problems?

| May 28, 2019 | Criminal Law & Municipal Court, Green Cards |

In New Jersey, driving while intoxicated in a school zone is a very serious offense with particularly severe penalties that go well beyond the typical punishment associated with a regular drunk driving offense. The offense is punished under Title 39:4-50(g), which provides for enhanced penalties when a violation under 39:4-50 occurs:

· On any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1000 feet of such school property;

· Driving through a school crossing as defined in RS 39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or

· Driving through a school crossing as defined in RS 39:1-1 knowing the juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.

Penalties for a first offense include potential jail up to 60 days; mandatory loss of license from one to two years; and fines. Exposure to imprisonment, loss of license, and fines only increase with subsequent offenses.

There are also a number of collateral consequences to consider, especially for those who are not United States Citizens. Depending on the type and nature of crime, a foreign national can potentially be removed from the United States for having been convicted of a crime involving moral turpitude (“CIMT”) or worse, aggravated felony. A DWI charge can be especially problematic because there are so many potential issues implicated, including but not limited to:

· Allegation of deportability as a crime involving moral turpitude

· Allegation of inadmissibility as a crime involving moral turpitude

· Allegation of inadmissibility as a health ground

· Allegation of deportability as an aggravated felony

· Prudential revocation of visa

· Effect on Good Moral Character Determination for naturalization

· Impact on eligibility for certain programs, such as Deferred Action for Childhood Arrivals (DACA)

· Effect on eligibility for cancellation of removal

In some cases, even if the DWI itself is not a criminal basis of removability, an individual may nevertheless be inadmissible or deportable. For example, the person may have entered the country without inspection or overstayed his/her visa. Being charged or convicted of a serious offense like driving while drunk may alert Immigration and Customs Enforcement (ICE) as to that person’s presence. In New Jersey, we have seen a surge in apprehensions by ICE at municipal courts throughout the state for those charged with DWI.

Where there are aggravating circumstances or egregious factors, the risk of adverse impact only escalates. A high blood alcohol reading, the presence of an accident or drugs, children in the car, or in this case, risk of harm to children can provoke a sterner reaction from the government. As a practical example, consider two applicants applying for naturalization: one with a regular DWI and one with a DWI in a School Zone. The one that occurred in a school zone is more likely to encounter resistance and possibly militate against a finding of good moral character. Contrary to popular belief, DWI is not just a traffic offense. In New Jersey, it is technically a “quasi-criminal” offense that, for immigration purposes, is perceived with extreme prejudice on the federal level.

The above is general information only and not intended to serve or be relied upon as legal advice.  If you need legal advice, please consult with an attorney.

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