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Drink driving and travel to USA

February 23, 2017 by in category Drink Driving, News with 10 and 1
Home > News > Drink Driving > Drink driving and travel to USA
drink driving and travelling to the usa

A common concern for our clients is whether a criminal conviction could impact a person’s ability to travel to certain countries such as America. We are delighted to include information from “the  horse’s mouth” with our guest blog from the current Chair of American Immigration Lawyers Association’s Department of State Liaison Committee, Daniel Parisi.

Guest Post By Daniel Parisi

Driving under the influence of drugs and alcohol is a very common offence in both the US and the UK and, in addition to carrying criminal penalties and driving bans, it can have an impact on a foreign national’s ability to travel to the United States.

Three categories of offence

The United States categorizes offences three ways for the purposes of US immigration law.  These are:

1) controlled substance offences;
2) crimes involving moral turpitude; and
3) crimes that do not involve moral turpitude.

Controlled substance offences

cocaine marijuanaControlled substance offences carry with them their own immigration penalties ranging from temporary to permanent ineligibility to travel to the US.  Therefore, a driving offence combined with possession of a controlled substance (i.e. cocaine, marijuana, etc.) will have more severe consequences than one based on consumption of alcohol.

Crimes involving moral turpitude

Crimes involving moral turpitude are typically offences that involve some sort of fraud, dishonesty or vile conduct, such as theft (including shoplifting), certain types of assault, sexual offences, etc.  Like controlled substance offences, crimes involving moral turpitude preclude travellers from using the Visa Waiver Program (commonly referred to as ESTA) and may lead to visa refusals or complex applications for waivers of inadmissibility to the United States being required.  While the question on the ESTA application has changed from asking whether the applicant has been arrested or convicted of a crime involving moral turpitude to now asking if the applicant has been “arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority”[1], the underlying legal standard for “serious damage” or “serious harm” is still based on whether the offence involves moral turpitude.

Crimes not involving moral turpitude

The third category of offences, those that do not involve moral turpitude, of which driving under the influence of alcohol is one, generally does not prevent travel on the Visa Waiver Program or ineligibility for a visa on criminal grounds. Therefore, if an ESTA applicant has a DUI arrest or even conviction, he generally may answer “no” to the relevant criminal question on the ESTA form and travel to the US without disclosing the offence to the US authorities.

US Visa

USA visaFor those requiring a visa to the United States, such as anyone going to the US to work, study, etc. or those with other grounds of ineligibility to travel on the Visa Waiver Program, the situation is not as straightforward.  While a DUI generally does not have to be disclosed on an ESTA application, it does have to be disclosed on an application for a US visa, as do all other arrests for any reason.

US Embassy Panel Physician Referral

US immigration law provides that applicants who have been arrested for a DUI once in the five-years preceding their visa applications or twice in their lives, must be examined by the US Embassy’s doctor (called a Panel Physician) before a visa can be issued.  The reason for the referral to the Panel Physician on arrest, as opposed to conviction, is that inadmissibility to the US for DUI is health/alcohol abuse related and not on based criminality.  The Panel Physicians are agents of the US Centre for Disease Control and, based on their findings during the examination, they have the power to recommend against or even prevent a US consular officer from issuing a visa.

The Panel Physicians looks for evidence of substance abuse or misuse during the course of the past year or a pattern of historical abuse.  In some cases, if the DUI arrest took place within a year before the medical exam, it can be sufficient to warrant a negative recommendation from the Panel Physician.  While the Panel Physician’s negative recommendation may be overcome by a waiver, which can take approximately six months, a prohibition from the Panel Physician based on health grounds may not and a new visa application would need to be made.

As the US Government continues to find ways to combat DUI and the resulting injuries and fatalities, visa holders who are physically in the United States have their visas revoked upon arrest for DUI.  This change in the law came into effect on 5th November 2015 and it affects all visa types.  Upon the arrest of a foreign national, local law enforcement reports to the Federal Government and, within a day or two after the arrest, the Department of State instructs the Embassy that issued the person’s visa to revoke it in their system. As noted above, like referrals to the Panel Physician, mere arrest absent a conviction is sufficient for the visa revocation because this is done for health reasons, not on criminal grounds.  The government has determined that the breathalyser result is sufficient to lead to a determination that the person has been driving under the influence of alcohol.  While the revocation of the visa does not, by itself, mean the visa holder must depart the United States, it does mean that the visa is no longer valid for travel to the US.  Therefore, if the person does depart, he or she would need to seek a new visa before returning, which would then, of course, lead to the examination by a Panel Physician following the visa interview.

It is important to note that the UK’s Rehabilitation of Offenders Act, stepping down certain offences after a number of years (known as spent convictions) does not apply to US immigration law.  It is also important to note that UK police cautions issued on or after 10th July 2008 are viewed as convictions (or at least admissions of guilt) for US immigration law purposes.  Therefore, foreign nationals who have been arrested for DUI (or any offence) anywhere in the world, should seek the advice of a US immigration lawyer who understands the intersection of criminal law and US immigration law when planning to travel to the United States.  If the person is already in the US at the time of arrest and potential visa revocation, advice from a US immigration lawyer should be taken as well as advice from a local criminal lawyer.

Daniel Parisi is a Partner at Tocci, Goss, Lee, Shipley & Parisi in London. Daniel has practiced immigration law since 2003, and has handled a wide range of immigration issues.  His practice has a particular focus on consular processing and waivers of ineligibility. Daniel is currently the Chair of American Immigration Lawyers Association’s Department of State Liaison Committee through which he works with US Embassies and Consulates around the world as well as with the Department’s Visa Office in Washington, DC on legal matters.

[1] https://www.cbp.gov/travel/international-visitors/frequently-asked-questions-about-visa-waiver-program-vwp-and-electronic-system-travel

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10 Comments

  • Bev Stevenson
    on July 17, 2017 Reply

    Good eveningi have just booked a holiday to America for May 2018.
    I have been looking on the web but I cannot get a definitive answer.
    I was arrested and convicted for drink driving in January 2016. I was banned for 9 months

    Could you please advise if this affects me travelling to America and also can I complete an ETSA?
    Thank you
    Bev Stevenson

    • Jeanette Miller
      on July 18, 2017 Reply

      Hi Ben,
      We recommend that you contact the guest author of this article, Daniel Parisi for further guidance on this.

      Kind Regards,
      Jeanette Miller

  • Jean
    on October 2, 2017 Reply

    Hi, my son was arrested for drink driving last year and we are taking the family to America next year for two weeks for my husbands retirement will my son need a visa or a ESTA or will he not be allowed in?

    • Jeanette Miller
      on October 4, 2017 Reply

      Hi Jean,
      Thank you for your question. The USA categorises offences into three different categories for the purposes of immigration. The three categories are controlled substance offences, crimes involving moral turpitude and crimes that do not involve moral turpitude. Drink driving is classified as an offence that does not involve moral turpitude. Therefore drink driving charges do not usually prevent eligibility for visas to the USA or prevent travelling on the Visa Waiver Program.
      The ESTA application also asks whether an individual has been “arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority.” As an individual that has been charged with drink driving does not satisfy any of the aforementioned criteria, they may generally answer no. However, to be sure and to gain further advice on travelling to the USA following a drink driving conviction, we recommend that you contact US Immigration Lawyer Daniel Parisi of Tocci & Lee LLC on 020 7268 6831.
      Kind regards,
      Miss Justice

  • Jo read
    on February 1, 2018 Reply

    Hi

    I have been banned for drink driving and am looking to go to New York for the weekend,could entering be a problem?

    • Jeanette Miller
      on February 1, 2018 Reply

      We are not experts on US immigration law but suggest you speak to someone who is before you travel. We know Daniel Parisi is happy to offer advice about these issues.

  • Rebecca Louise Barnes
    on July 11, 2018 Reply

    Hi, I Was convicted of drink driving in January 2016, I was told because it was not a conviction of moral turpitude I could answer no to having a conviction,but an ESTA was refused???? so i applied for a non immigrant visa which has also been refused??? and i have now been referred to a panel physician referral which unfortunately I didnt realise there was a 3 month period which I had to take the medical so what do i do now as you cant call or email the embassy to ask?? and the physician panel dont know either. Please can you tell me if I was refused an ESTA because I crashed into another car but the motorist involved had no serious injuries.

    • Jeanette Miller
      on July 11, 2018 Reply

      Sorry to hear about the difficulties you have experienced. We are specialists in the law surrounding drink-driving. However, for more complex issues relating to US immigration law, we suggest you speak to a specialist in that field. Daniel Parisi is happy to hear from our clients who have US immigration law questions. Please get in touch with him. We hope he can help.

      Jeanette Miller
      Managing Director
      Geoffrey Miller Solicitors

  • Paul
    on July 30, 2018 Reply

    Hi there,
    I have been charged with a DUI in 2016, marginally over the limit and received a fine and 9 month ban. I am speaking with Recruiters about taking a possible position in California. Obviously I am worried about what this means for a Visa application to work. What should I expect to do and is there any proactive measure I can take to start moving things forward independently?
    I appreciate any advice available.
    Thanks
    Paul

    • Jeanette Miller
      on July 31, 2018 Reply

      We recommend you speak with a US immigration specialist. Daniel Parisi is always happy to hear from our clients.

      Thanks
      Jeanette S. Miller
      Managing Director

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