DACA and DUI Overview
DACA and DUI do not mix. If you are convicted of a DUI with DACA, USCIS will not renew your DACA. A misdemeanor DUI conviction under Vehicle Code § 23152 or §23153 is a “significant misdemeanor” and a bar to eligibility for DACA. Without DACA protection, USCIC could deport you. One DUI is not ordinarily grounds for deportation. However, USCIS can deport a person with multiple DUI convictions.
Fighting the case
Given the stakes (loss of DACA protection) fighting the case may be your best option. You can fight the case by attacking errors made by the police. You can also fight the case by having a trial to determine whether you are guilty. The burden is on the prosecutor to prove that you were driving a vehicle and: 1) had .08% or greater Blood Alcohol Content (BAC); OR 2) were impaired by alcohol such that it affected your driving. The prosecutor must prove the DUI “beyond a reasonable doubt.”
In order to fight a DUI, you should have an attorney. You can hire an attorney, or if you cannot afford one, request the public defender to represent you.
Alternatives
Diversion with DACA and DUI
Diversion results in dismissal of criminal charges and is therefore the ideal outcome for people with DACA. However, in most counties it is rare for a judge to grant diversion on a DUI case. In the future, the legislature might change the diversion law to ensure that diversion is allowed for DUIs.
Non-DUI Charge
Another option is to resolve the case for a different charge, such as wet and reckless. The prosecutor must agree to change the charge. Usually the prosecutor will not reduce the charge unless the BAC is low (less than .10%). However, sometimes the prosecutor will agree to a wet and reckless conviction with a higher BAC. This happens when there are weaknesses in the prosecutors case or other factors that warrant a lesser charge.
Timing DACA and DUI Conviction
The best time to be convicted of a DUI is immediately after your DACA renewal. This allows the maximum time for rehabilitation and record-clean up. Ideally, by the time your next DACA renewal comes up you will have several years of clean record and rehabilitation.
Expungement and Rehabilitation
A DUI conviction that has been expunged or vacated is not a per se bar to DACA. However, USCIS may still consider an arrest for a DUI offense as a negative discretionary factor in evaluating whether to grant or deny DACA. This makes rehabilitation for a DUI extremely important. Rehabilitation includes attending AA meetings, completing DUI class, paying restitution and remaining crime-free.