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NJ Drunk Driving Immigration Consequences | Marijuana Use Can Be Deportable

On Behalf of | Jun 24, 2019 | Criminal Law & Municipal Court, Deportation |

In New Jersey, a DWI is most commonly associated with alcohol. However, that is not the only way an individual can be charged with driving while under the influence. Under New Jersey statute 39:4-50, the law encompasses driving under the influence of not only intoxicating liquor, but also narcotics, hallucinogenic or habit-producing drugs. In other words, operating a motor vehicle under the influence of marijuana can give rise to a DWI charge just as easily as driving impaired due to alcohol.

For non-US Citizens, this can be critical because a DWI/DUI charge can potentially raise deportability concerns. A recent precedential case out of the Third Circuit, Sambare v. Attorney General of the United States, in fact underscores what lengths the government will go to pursue removal against foreign nationals charged with certain offenses. In this particular case, Mr. Sambare was convicted of violating a Pennsylvania DUI statute for having driven a car while under the influence of marijuana. The Court found that he was removable on the basis of a “violation of…any law or regulation of a State…relating to a controlled substance.” That is to say, the DUI served as the predicate of a controlled substance offense deportability charge, not a Crime Involving Moral Turpitude charge. What’s worse, the Court applied a “common sense” approach to the exception regarding possession of 30 grams or less of marijuana and held that the carveout did not encompass violations such as Driving While Intoxicated, even though 30 grams or less of cannabis may have been involved. Put another way, the Court determined that the crime of possession is a separate and distinct offense from that of DUI, which presumably is intended to protect the public at large. The upshot of this legal legerdemain is that a DUI is treated more seriously in an immigration context even though in a criminal arena, the penalties are likely less serious. For example, in our state of New Jersey, possession of marijuana under 50 grams is technically a disorderly persons offense-and still prescribed by our laws. In contrast, 39:4-50 is not an offense listed under our criminal code but rather under the traffic code. Yet, according to this decision, a non-US citizen convicted of DWI involving marijuana, weed, or pot may now be susceptible to a controlled substance offense allegation of deportability and will not be able to avail him/herself of the 30 grams exception.

If anything, this only highlights again the serious immigration ramifications of a DWI charge. Even first offense violations without any aggravating circumstances can have enormous consequences for those who are not US Citizens.