Question about DUI and CIMT

[softvirgo]

I have read that if you get a DUI while your license is suspended because of previous DUI, it is considered as Crime Involving Moral Turpitude.

But if your license is not suspended but you was on probation for previous DUI and u got new DUI even then it is going to get considered for CIMT.

This is just a matter of dicussion as my friend's fiancee is under same scenario.

I am specifically asking for California state where there is no aggravated DUI statue

In California, All DUI's (except for 4th DUI's and those causing great bodily harm) are simply that, DUI's. You can be *sentenced* much more harshly for a 2nd or 3rd DUI, but the elements of the crime (what the DA has to prove) don't change.

What do you guys think

 

[Husty]

That is not "entirely true". It would be a CIMT as long as "evil intent" is part of the statute itself. DUI in California is only a regulatory offense. This is not legal advice so talk to an attorney if you need legal help.

 

[softvirgo]

one more question husty or experienced people

This time she got charged with just a simple DUI 23152(a) which is regulatory offense.

we checked her criminal history and her statues were

23103.5 which is wet reckless and lesser than DUI
23152(a) simple dui

both were in CA. So as per your post and I read somewhere else also that CIMT can be judged base on evil content in the statue of punishment and immigration judges can't go beyound the statue in which you have been charged.

SO i think she will be ok.

 

[Michael Wechsler]

Here are the DUI Statutes you are referencing in the state of California:

Driving Under Influence of Alcohol or Drugs

23152. (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.

(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(c) It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.

(d) It is unlawful for any person who has 0.04 percent or more, by weight, of alcohol in his or her blood to drive a commercial motor vehicle, as defined in Section 15210.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(e) This section shall become operative on January 1, 1992, and shall remain operative until the director determines that federal regulations adopted pursuant to the Commercial Motor Vehicle Safety Act of 1986 (49 U.S.C. Sec. 2701 et seq.) contained in Section 383.51 or 391.15 of Title 49 of the Code of Federal Regulations do not require the state to prohibit operation of commercial vehicles when the operator has a concentration of alcohol in his or her blood of 0.04 percent by weight or more.

(f) The director shall submit a notice of the determination under subdivision (e) to the Secretary of State, and this section shall be repealed upon the receipt of that notice by the Secretary of State.

Repealed Ch. 708, Stats. 1990. Effective January 1, 1991. Operative January 1, 1992.
Amended Ch. 974, Stats. 1992. Effective September 28, 1992.
Amended Sec. 31, Ch. 455, Stats. 1995. Effective September 5, 1995.

NOTE: This section remains in effect only until notice by the Secretary of State, at which time it is repealed and the following section becomes effective.

23152. (a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle..

(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person's blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.

(c) It is unlawful for any person who is addicted to the use of any drug to drive a vehicle. This subdivision shall not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.

(d) This section shall become operative only upon the receipt by the Secretary of State of the notice specified in subdivision (f) of Section 23152, as added by Section 25 of Chapter 1114 of the Statutes of 1989.


Reckless Driving

23103. (a) Any person who drives any vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

(b) Any person who drives any vehicle in any offstreet parking facility, as defined in subdivision (c) of Section 12500, in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

(c) Persons convicted of the offense of reckless driving shall be punished by imprisonment in a county jail for not less than five days nor more than 90 days or by a fine of not less than one hundred forty-five dollars ($145) nor more than one thousand dollars ($1,000), or by both that fine and imprisonment, except as provided in Section 23104.

 

[Michael Wechsler]

Looking over the statutes, the second is not a DUI. In addition, my understanding is that a DUI is not a crime of moral turpitude.

 

[CdwJava]

Professor, you forgot CVC 23103.5 which is our "wet reckless" section:

23103.5. (a) When the prosecution agrees to a plea of guilty or
nolo contendere to a charge of a violation of Section 23103 in
satisfaction of, or as a substitute for, an original charge of a
violation of Section 23152, the prosecution shall state for the
record a factual basis for the satisfaction or substitution,
including whether or not there had been consumption of any alcoholic
beverage or ingestion or administration of any drug, or both, by the
defendant in connection with the offense. The statement shall set
forth the facts that show whether or not there was a consumption of
any alcoholic beverage or the ingestion or administration of any drug
by the defendant in connection with the offense.

And, it is also my understanding that DUI is not a crime of moral turpitude ... at least not so far as it concerns employment and criteria for peace officer employment (an area that I am involved in).

- Carl