In California, a criminal defense lawyer representing a non-citizen defendant has a duty to research the specific immigration consequences of a particular plea and inform the client but it was not ineffective assistance of counsel when the defendant’s attorney gave incorrect advice on the immigration consequences of a misdemeanor or felony conviction.
California DUI misdemeanor cases almost always do not have to do with “moral turpitude” and generally do not allege drugs. Consequently, deportation is not something aliens typically face. So it is fair to say that in most California DUI misdemeanor cases, there is no possibility of deportation.
However, an alien should make sure to consult with a licensed attorney when facing any criminal charges. In unusual situations, an alien Drunk Driving defendant would not have entered the plea in California if he or she had been advised by the criminal defense attorney of the possibility of deportation.
A San Diego DUI attorney should consider possible immigration consequences of any drunk driving conviction in a California Superior Court criminal case. In complicated cases, the lawyer may wish to pursue a San Diego DUI court plea deal which prevents any possible deportation.
A California lawyer may be considered ineffective counsel for failure to seek recommendation from court against deportation of alien. California Penal Code §1016.5 requires a court taking a plea to provide the defendant with 3 admonishments as to immigration consequences, and the failure to do so can be a basis for vacating the plea. The California Supreme Court says an alien must show prejudice from incomplete advisement of consequences of plea.
A prior DUI conviction alleged as a sentence enhancement will not be stricken by a California Court as unconstitutional when that claim is solely based upon lack of lawyer advice. The remedy is for the attorney to vacate the plea in the rendering court.
A defense lawyer’s motion to vacate the judgment pursuant to section 1016.5 must generally be supported by a showing, at a minimum: (1) that at the time of his plea the defendant was not aware of the possible immigration consequences of his plea, (2) that he would not have pled guilty or nolo contendere had he known of the possibility of deportation or other immigration consequences, and (3) that his motion was brought with reasonable diligence upon discovery of the true facts.
Amnesty status is not granted to illegal aliens who have 3 or more misdemeanor convictions, per California Penal Code §1016.5(b).
A California attorney is better not to allow too much time to pass so there is first a deportation proceeding because then the lawyer may be required to show actual fraud, duress, or facts that establish that the defendant’s free will and judgment were overcome.
This article is not meant to be any legal advice to any one. This San Diego lawyer author is not an immigration attorney. An immigration attorney should always be consulted when facing any DUI or California criminal charge.