When Can a DUI Be an Aggravated Felony?

Under current U.S. immigration law, most driving under the influence (DUI) offenses are not treated as "aggravated felonies," which is the most serious category of criminal immigration violations. A DUI will be considered an aggravated felony only if certain factors are present. However, for any noncitizen of the U.S., a DUI offense should still be taken very seriously (and avoided if possible).

A DUI offense will constitute an aggravated felony "crime of violence" if it results in a prison sentence of at least one year and the offense either:

• has as an "element" -- that is, as a factor of the crime that the prosecution must prove in order to convict -- the use, attempted use, or threatened use of physical force against the person or property of another, or
• is a felony and involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 

In Leocal v. Ashcroft, 543 U.S. 1 (2004) , the leading immigration case on this issue, the U.S. Supreme Court considered the removal case of a lawful permanent resident living in Florida, who had pled guilty to two counts of DUI and causing serious bodily injury, and had been found removable for committing an aggravated felony crime of violence.

The Court found that the definition for crime of violence applied in U.S. immigration law did not cover actions committed accidentally or negligently even if injury resulted, because the definition required the active employment of force or conduct committed with the knowledge that there was a substantial risk that physical force might be used against another. The Court thus held that noncitizens convicted of DUIs may not be deported if their state statute of conviction did not have a specific intent requirement or required only a showing of negligence in the operation of a vehicle. Because the Florida DUI statutes in question did not contain the required intent requirement, the Court reversed the removal order of the lawful permanent resident petitioner.

Like the Florida statutes in Leocal, most state DUI offenses do not fall under the aggravated felony crime of violence definition. Typically, states prosecute defendants for the simple act of driving while under the influence of alcohol or drugs, without requiring a showing of intentional or reckless conduct. In addition, most DUI offenses are misdemeanors for which a sentence of less than one year is imposed.

However, if your DUI offense involved some form of injury to someone or to property, or the judge sentenced you to prison for one year or more (even if you did not in fact serve one year), you should consult with an immigration attorney about whether your DUI offense may be an aggravated felony. In such a case, it is possible that you were prosecuted under a statute that included a specific intent requirement. 

In recent years, bills have been proposed in Congress to revise the definition of aggravated felony to include more DUI offenses. So far, these bills have not passed. However, these efforts indicate that the law may change in the future.

In addition, even if your DUI offense is not an aggravated felony, the government takes DUI offenses seriously.  It may use them as a basis to hold you in immigration custody and require a bond for your release, or may use them as a basis to deny you immigration benefits or relief from removal as a matter of discretion. Thus, the consequences for a DUI offense may still be very significant.