Recently I represented a young man charged with DUI in Los Angeles County. The client was a a recipient of DACA and was afraid of the impact a driving under the influence conviction would have on his ability to remain in the United States.

In defending this client, I embarked on a journey of education in Federal Immigration Policy. What is DACA? It is an acronym, Deferred Action for Childhood Arrivals (“DACA”) is a reprieve from deportation that can be granted to immigrants who are undocumented, were brought to the United States as young people, and are either currently attending school, graduated from high school, or were honorably discharged from the U.S. military. The program alleviates deportation risk, comes with temporary employment authorization, and can create a path to permanent lawful status. In implementing the DACA program, the federal government built in strict conviction-based bars. These include convictions (infractions, misdemeanors, and felonies) for “driving under the influence (“DUI”). DHS did not include traffic offenses in the absolute bars to young people receiving DACA.

In implementing the DACA program, the Federal Government included strict bars, including a conviction for “driving under the influence.” DHS’s formal FAQ regarding DACA states, “[i]f you have been convicted of a … significant misdemeanor offense … you will not be considered.” The FAQ goes on to say that “[f]or the purposes of” DACA, “a significant misdemeanor is a misdemeanor … for which the maximum term of imprisonment authorized is one year or less but greater than five days … and that … [r]egardless of the sentence imposed, is an offense of … driving under the influence.” Vehicle Code §§ 23152 and 23153 fit these criteria. Both convictions are punishable by more than five days imprisonment. Both convictions are an offense of driving under the influence. Immigrants otherwise eligible for DACA will not be considered if convicted under either of these DUI statutes.

What can be done to avoid the harsh consequences that a DWI will cause DACA kids? The best alternative is a plea to the offense of reckless driving involving alcohol or drugs, commonly referred to as a “wet reckless”. A § 23103.5 offense is not a DUI offense for purposes of DACA, because there is no finding or requirement that the defendant drove under the influence of alcohol.

Many criminal defense attorneys in California report a conviction for wet reckless will not result in a per se bar to DACA. Anecdotal evidence indicates that DHS has granted DACA in cases involving § 23103.5 convictions, having found them not to be significant misdemeanors. As DHS acknowledges outright in its FAQ, “the decision whether to [grant DACA] in a particular case is an individualized, discretionary one that is made taking into account the totality of the circumstances,” and thus a § 23103.5 conviction may serve as the basis for a discretionary denial of DACA. However, this is critically different from convictions under § 23152 or § 23153 which outright preclude a grant of DACA absent “extraordinary circumstances.” See Moncrieffe v. Holder (2013) 569 U.S. 184, 204 (distinguishing between mandatory deportability and the ability to seek discretionary relief that the government may decide whether or not to grant).

For noncitizens otherwise eligible for DACA, the difference between a conviction under VC § 23103.5 as compared to VC § 23152 or § 23153 is significant; whereas the former will allow for consideration of a DACA application, the latter two will not. This explains and exemplifies why the Supreme Court has held that “deportation is … intimately related to the criminal process,” further observing that state and federal laws have “enmeshed criminal convictions and the penalty of deportation.” 559 U.S. at 365-366.

In codifying PC §§ 1016.2 and 1016.3, California has provided a statutory framework for prosecutors and defense counsel to engage in the plea bargaining process under modern and current terms where immigration consequences, like DACA, are bound up in rather than unrelated to the state’s criminal prosecution and the result for a defendant. California’s government intended, and the Supreme Court has held time and again, that criminal cases should resolve in a manner that allows noncitizens “to enter ‘safe harbor’ guilty pleas [that] do not expose the [alien defendant] to the risk of immigration sanctions.” Mellouli v. Lynch, 135 S. Ct. 1980, 1987 (2015) (internal quotations omitted, brackets original). In criminal cases of DACA-eligible noncitizens, a plea to VC § 23103.5 rather than a DUI statute accomplishes this very ideal.

I want to report a happy ending to my DACA client. After fighting the case for almost two years I was able to obtain a plea offer to a VC 23103.5 with a substantial amount of community service. This resolution was quite an accomplishment for the client considering the case involved a breath test of .17 BAC and a collision with 3 cars wherein one of the occupants claimed injury.

We want to give credit to The Immigrant Legal Resource Center (“ILRC”) for its memo on this topic.

Matthew Ruff is a Torrance Criminal Defense Attorney with close to 30 years experience defending clients charged with DUI and other serious crimes.