Criminal Law DWAI - Immigration problem?

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Newdui

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My state is Newyork (Onandaga county) I was arrested in rear private parking lot DWI (Driving while intoxicated) . My BAC level was 0.1. First time offense.
At that time I have learners permit only (I am the only person opeated car).No acident/no injury/no harm.

Got tickets 2 for DWI.
(1-DWI misdemeanor).
(2-DRV'G w/0.08 of 1% or more ALC MISD)

Got other 3 tickets.
(1-failed to show insurance card
2- no headlights
3- unlicenced operator - permit only ). Court date was 09/07/2007

I went to court (Town court) in my first appearnce with my lawer. MY DWI was reduced to DWAI (trafice infraction - Not a crime) with the following fine.

500 Fine + 80 surcharge - paid
90 days licence suspension
Attended 2 hr victim impact porgram - completed
Alchocol evaluation test - No treatments recommened.

All other tickets got dismissed. I paid all fine and submitted certificates, This week I went and received court certificate with court seal upon my request from court clerk.

It is said that Case disposed on 09/07/2007 with following details.

Disposition - Fine/fee (PLEA by Mail)
Section Disposed -VTL 1192 01 DWAI ALCHOCOL (Reduced from L VTL 1192 03 DWI - 1st offense)
Fine - 500$ S
Surchg - 80$ ( Comment :pLEA by Mail)
All Others -

Disposition - Dismissed (Comment : PLEA by Mail)

** Each of charge was disposed as above indicated.

Now i'm really scarred about my immigration side. i'm really worried about this being on my record. I am not a US citizen and on non-immigranant visa (L1B -individual - valid unitl 2009. (MY Employer will extend after that). I have couple more questions here.

1) Is there any problem to comeback USA again after visiting my country for a vacation? ( Before my visa expires)
2)Is deporataion to be happened because of this immediately?
3)Will INS will be communicated for this case?. And when they will come to know and when they can start action againtst me?
4)Will my details be shared to FBI or maintain only in this court??. So immigartion department will pull my record and send me out from this country?
5)Will my employer get to know about this case since i am on L1Visa.
6)Will it give any problem when I try to extend my VISA ( Will they deny my visa?).
7)Is it a problem to apply GC in future?
8) Is there any problem to comeback USA again after visiting my country for a vacation>

9) In DS156 form (I need to submit when I apply VISA extension) , Can I answer "N" for the following question?

"Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty or other similar legal action? Have you ever unlawfully distributed or sold a controlled substance(drug), or been a prostitute or procurer for prostitutes?"


I would most appreciatem, if you help in this.
 
1) Is there any problem to comeback USA again after visiting my country for a vacation? (Before my visa expires) .It is just a first DUI with no aggravating circumstances. You should be okay. But hold all relevant papers of the disposition. This DUI charge is not enough to make you inadmissible.

2) Is deportation to be happened because of this immediately? Not enough to trigger deportation. You are fine……….Just don't mess up again….It is deportable under certain circumstances…..not this one.

3) Will INS will be communicated for this case? And when they will come to know and when they can start action againtst me? They will know from your forms you submit to renew statues and from background checks. But it is not a crime which would make them ask you to leave or deport you………….They will not hold this against you and deny to renew your status.

4) Will my details be shared to FBI or maintain only in this court? So immigration department will pull my record and send me out from this country? Your details will be shared with The FBI and all relevant agencies. Your details are public information. But the crime is not enough to trigger deportation. Calm down……

5) Will my employer get to know about this case since I am on L1Visa? They will know if they run a background check. But it is your first offense; most companies would not bother firing you about it. In immigration law, your first offense is mainly considered a traffic infraction.

6) Will it give any problem when I try to extend my VISA (Will they deny my visa?).It should not if this is your first offense and only arrest.

7) Is it a problem to apply GC in future? No, if it is the only offense and arrest.

8) Is there any problem to comeback USA again after visiting my country for a vacation? No you are fine just carry court disposition papers at all time when traveling.

9) In DS156 form (I need to submit when I apply VISA extension), Can I answer "N" for the following question? Yes you have been arrested. And yes you were technically convicted of DUI (crime and infraction….same time)? Be honest about it. Never lie about it. If you are not honest about it they would come down on you like a hammer. I know cases with people on H1B visas who travelled to India and their visas still renewed even though they admitted to it. They only had to wait for two extra weeks for verification.

"Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty or other similar legal action? Have you ever unlawfully distributed or sold a controlled substance (drug), or been a prostitute or procurer for prostitutes?"
 
mafioso said:
1) Is there any problem to comeback USA again after visiting my country for a vacation? (Before my visa expires) .It is just a first DUI with no aggravating circumstances. You should be okay. But hold all relevant papers of the disposition. This DUI charge is not enough to make you inadmissible.

2) Is deportation to be happened because of this immediately? Not enough to trigger deportation. You are fine……….Just don't mess up again….It is deportable under certain circumstances…..not this one.

3) Will INS will be communicated for this case? And when they will come to know and when they can start action againtst me? They will know from your forms you submit to renew statues and from background checks. But it is not a crime which would make them ask you to leave or deport you………….They will not hold this against you and deny to renew your status.

4) Will my details be shared to FBI or maintain only in this court? So immigration department will pull my record and send me out from this country? Your details will be shared with The FBI and all relevant agencies. Your details are public information. But the crime is not enough to trigger deportation. Calm down……

5) Will my employer get to know about this case since I am on L1Visa? They will know if they run a background check. But it is your first offense; most companies would not bother firing you about it. In immigration law, your first offense is mainly considered a traffic infraction.

6) Will it give any problem when I try to extend my VISA (Will they deny my visa?).It should not if this is your first offense and only arrest.

7) Is it a problem to apply GC in future? No, if it is the only offense and arrest.

8) Is there any problem to comeback USA again after visiting my country for a vacation? No you are fine just carry court disposition papers at all time when traveling.

9) In DS156 form (I need to submit when I apply VISA extension), Can I answer "N" for the following question? Yes you have been arrested. And yes you were technically convicted of DUI (crime and infraction….same time)? Be honest about it. Never lie about it. If you are not honest about it they would come down on you like a hammer. I know cases with people on H1B visas who travelled to India and their visas still renewed even though they admitted to it. They only had to wait for two extra weeks for verification.

"Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty or other similar legal action? Have you ever unlawfully distributed or sold a controlled substance (drug), or been a prostitute or procurer for prostitutes?"
Click to expand...
Thank you verymuch for making me relief... I was charged by 1192(1) VTL law in the court. That is traffic infraction (violation) . Even though will my inforamtion be shared to others (immigration department/INS/private employers/public employers/FBI/others ) from local town court (where I appeared).. ?.

Could you please clarify.....
 
Once you have an arrest record, it could be seen by everyone who runs a background check. Even if the charge was reduced, it would not get ride of the arrest record. The country is wired for all information to get out and be readily available to all through many routes... What you see on the case disposition letter would be available to anyone who runs the background check or checks with the court…..immigration, jobs….etc. You can't expunge a DUI in most cases. There are many online background check companies which buy record and sell to anyone who wants it. Different counties sell to them as well or buy records from DPS….So what I mean is anyone can get it one way or the other.
 
I really appreciate all your help, and thank you very much for explaining. I understood once arrest happens, the rap sheet will be created and the information will be open to public, unless otherwise if we didnt close.
 
mafioso
Thank you verymuch for your great help. Is it any legal way to seal or close or clean this arrest record for not viewing all people?
 
Yes you get it...............even an expunction would not work with the immigration and FBI. It works only with the rest of the agencies and court. DUI's usually cannot be expunged..... I guess all states............Not too sure. It can be sealed so employers and the rest of the public have no access to it. Only law enforcement would have access to it.
 
Mafioso,

Again I need your help. I got letter from my attonery it is saying that "the judge sentenced me to conditional discharge for one year, which means I have to stay out of legal problem in the period of one year and judge waived to attend and complete DDP program and reduced from midemeanor to traffic infraction (VTL 1192(1)). Please contact court clerk to get your certification of disposition letter. As you PLED to DWAI. There will have no criminal record and it will be noted as traffic infraction. For showing this if you required, Please contact court clerk to get your certification of disposition letter that will indicate that you are convicted to DWAI not DWI. ".

I collected court disposition letter. It is mentioned in this as follows

Section Disposed Disposition
------------------- -------------
VTL 1192 01 DWAI ALC(Reduced from DWI-1 1st offense) Fine/fee (PLEA by Mail)
Others (4) Dismissed(PLEA by Mail)

Based upon official request of the defendant, I certify that the above was charged and defendant appered the court before that he was charged.

Court appeanced (09/07/2007)
Case Status : Disposed (09/07/2007)

Judge Name
His signature


Could you please clarify my following doubts?. I was not sentenced for probation and attend any other classes

1) What is conditional discharge? When I am in conditional discharge. is there any problem to go out from this country and coming back again? 2) After one year, do I need to contact court again or automatically they will close/take action to close my record)
3) Do I need to collect any other documents from the court for avoiding immigartion issues or this is enough?
4) what is the difference between conditional discharge and probation?
 
These were the two main issues the U.S. District Court for the Western District of New York addressed in United States of America v. Thomas Gordon. They answered this question about the difference between conditional discharge and probation. Their conclusion has been up held in other circuit courts…..There is no difference was their ruling. The charges would be dismissed after a year just like in differed judgment….if you don't have a DUI again. You might have to notify them after a year…….I don't know. Different counties and states do it differently….don't have information on how your county works. Just call and ask. There is no restriction on your travel……..You can travel but just hold all your paper work from the court and lawyer. You would not have a problem given you have been found guilty of just a traffic infraction. Know that even traffic infractions are crimes but no one really cares about them. Immigration forms usually does not care about them….they would specify not to mention it if that is all on your record….but if arrested you should mention. DWAI means driving while ability impaired…… (However, DWAI cannot be considered as a prior DUI in other states). It is not much different from DUI but better. Even a simple DUI is a traffic infraction which could affect your immigration if it happens often or under aggravating circumstances. Travel if you have a valid visa. If you have to go renew it at a USA embassy, then they could delay…………..but generally if this is your only charge ever, you would be fine. But if your visa is still valid you would have no problem at entry port. They would see your arrest was a traffic related event and would look the other way if they see it in the system.
 
Mafioso,
Thank you vwerymuch. Just now I called and enquired about "conditional discharge" to my DWI attorney. She said "I dont need to visit the court at any more. It was handled already. Also I am not under any probation, so no need to report. But I have to pay 750$ to DMV as a driver responsibility program, I will get letter from DMV office regardign this. If anybody asks the status of my case, I can show disposition letter. "

She said I can put "N" to immigration form, because there is no cirminal record for me ( she is a DWI lawer only). But as you advised I should put "Y" only (honestly). Because you are an immigration lawer, so I should take your adivse in this.

Also can you please advise in my following doubts?

Is there any chance to pop-up this DWAI information automatically in the immigration/port entry/INS system once they simply search my visa details at the time of contacting them?.

I heard from one of the article When I renew my visa type (at the time of going to consulate with DS156), I should go medical exam to consulate physican, becasuse I was convicted alchocol related traffic infraction within 3 yrs. this will make delay 4-5 days only (beacuse now electronic finger print machines are introduced in US consulate) - colud you please confirm if this is true.
 
Your DWAI would be know by immigration if they run your fingerprints………….Don't forget that once you are fingerprinted, it creates an FBI record which is never deleted even if you expunge your record. All immigration forms would ask you in the same sentence if you had been arrested, indicted, charged, plead guilty, pardoned, etc….something like that. So you would always say yes to them. You can't hide anything from them……….They would not automatically just get a notification of your charge. They would know whenever they want to change your statues and do you a background check, or at an embassy. Even if you were arrested for speeding 100miles above speed limit, immigration would see it when they do a background check…………they would see it due to the fingerprints at arrest. So that is why it is important to say yes to them. Saying "yes" does not mean it would affect you. It is simply to be honest and they love it when you are honest. DWAI would never be used to deny you a visa or status change. It is your first charge and there was no aggravation circumstance. Just make sure it never happens again.


But to the rest of the people apart of immigration, you can say what your lawyer said.

At the port of entry, the immigration officer could run your fingerprints through their FBI system….they seem to chose people at random……there are conflicting stories why some people with priors are not stopped while other are….If they run it, It would show the charge and they know it is not enough to make them deny you entry. Just hold every single paper you or your lawyer has ever received from the court including the disposition letter. The disposition letter is the most important but hold all just in case.

I can't confirm the medical exam at consulates………..Just go there file the forms and if they need it they will tell you. I have not heard about that. I know of an Indian on H1B visa who never did such a test……..this was in December 2006. They just delayed him for a couple of days.So don't worry they would tell you if you need it.
 
Mafioso,

Thanks a lot for your cristal clear explanation. I will follow the same as per your advice. Now I got a complete relief from this and thanks once again.
 
Thats okay...........let us know if you need more adivice.....
 
Hello Mafioso

I am really looking forward to some help on my miserable situation. I am on H1-B since October 1st. I was arrested for DUI in April. My BAC was 0.09. There was no accident / incident. My lawyer got the DUI charge dismmissed and I plead guilty to reckless driving. Sentence was 60 days, no probation - 40 hours community service and a victim impact panel. However on one of the immigration lawyers website says that reckless driving may not be a safe bet for immigrants as it is not clearly defined and could be interpreted as a CIMT. It says a DUI conviction might be a better alternative. I am really confused and frustrated. Could you please offer some advice?
 
You are okay…………Don't worry about it. If you have only one DUI on your record with no aggravating circumstances (like accident), you are okay. One DUI is not considered a CIMT under your circumstance. Even if you plead guilty to reckless driving, immigration would focus mainly on the original charge which is DUI. Your BAC results and court paper would show you simply plead to a lesser charge which does not make you guilty for reckless driving. I know what he is trying to say, but don't bother, it would not affect your own circumstance. You would be okay. Next time don't use a regular lawyer when you have any contact with the law. Always talk to an immigration lawyer first. Most criminal lawyers have no clue on immigration law and give you advice which is good only for US citizens. Citizens have special privileges but most lawyers confuse that with equal protection under the law in the US constitution.
 
mafioso

Thanks a lot for your advice. I am planning to go to india in december for my first h1-b visa stamping. I have heard conflicting news from people in similar situation. Anyone with an alcohol related arrest has to undergo a physician panel evaluation and in some cases it seems that the visas have been refused even though the evaluations seemed favorable (i am having a hard time believeing this though). My question is whether one can appply for a hardship ineligibility waiver even before appearing for the interview?

Also, I have not shared this incident with my corporate immigration lawyers. I wonder what confidentialty understading such relations have? Would they share this with my employer or would they work confidentially with me?

Thanks again.
 
I know of a few cases of people who went to India and were allowed to return here with no problem.. it just took an extra month delay….One of them almost lost the job…. You just have to carry everything with regard to the complete disposition of the case. I mean everything...........statements, judge's order and plea agreements, everything........If you search this forum; you will see the guy on DUI was allowed to return. I might be mistaken this forum with another, but I would try to look for it and send to you later this weekend. The only thing is you should be honest about it on your visa forms or any such doc. They delayed his H1b for about one month and then they gave him..........The consul actually told him it was okay and that everyone can make a mistake. I know some consuls are not that kind but and might pose a problem. But immigration law and US law permits a person with one DUI to get a visa without prejudice. But by the end of the day, a visa is left to the consulate's discretion. If you are really worried you could go renew in Mexico........they are more versed and understanding since they deal with DUI more often. It is your call.........If you are worried about the law, it is okay. By the way, the guy who went to India who I advised never did any medical test........that might be a new law. You do not qualify for a waiver because you are not facing something which requires a waiver. Waivers are hard to get this days. Hardship waivers work mainly in reuniting families not for simple HIB visas..........DUI does not need a waiver.
 
mafioso

I was looking up mexico consulates and the Matamoros consulate seems to be the most convenient (costs and schedule). I am not even remotely familiar with mexico and would appreciate if you could give me some advice or direct me to an appropriate resource.

I need to check if this consulate has a designated panel physician and electronic processing. I did not find this information anywhere.

I am probably asking you questions irrelevant to you, however i thought you might have some idea.

Thanks a lot for all your guidance.
 
I would post you the info for consulates in Mexico on Monday.
 
mafioso

I have already scheduled an appointment at the Matamoros counsulate for December but am unable to find any information on designated physicians and on whether this consulate has electronic processing. I want to schedule an appointment ahead of time to save on the processing time there. Can you please forward me these details?

My original plan was to go to the Mumbai, India consulate but reading some of the posts on another website about DUI rejections (especially in the Chennai consulate) I am really nervous. Do you have any information about this?

Also, would the fact that I was actually not convicted to DUI make a difference in the VO's judgement? I think I will be in the system as the FBI check I ran on myself shows the arrest. I am working with the arresting agency to get the disposition details on the FBI report as well. Its kind of ironic that those who were actally conviced for DUI but were not fingerprinted got their visa without any questions asked!

Thanks.
 
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