March 1, 2000

SIMPLE DUI IS NOT A CRIME OF MORAL TURPITUDE, BUT DUI WHILE PROHIBITED FROM DRIVING DOES CONSTITUTE A CRIME INVOLVING MORAL TURPITUDE.

 

The Board held that simple DUI does not constitute a crime involving moral turpitude. It also held a DUI offense committed while the defendant was "absolutely prohibited" from driving does violate the accepted norms of society sufficiently to constitute a crime involving moral turpitude ["CMT"]. Since California does not have any aggravated DUI offense that contains analogous elements (i.e., prohibiting DUI while license is suspended), this ruling will be undiluted good news to California immigrants: simple DUI is not a CMT.

The Immigration Judge held the offenses did not involve "base or vile conduct or moral turpitude as classically defined," and terminated removal proceedings. The INS appealed. The Board reviewed the statutory elements of the two offenses of which respondent had been convicted. The first aggravated DUI conviction was for driving under the influence of alcohol, drugs, or a combination, if the person is impaired to the slightest degree, committed while the driver's license is suspended, canceled, revoked, refused, or restricted as a result of a prior DUI. The respondent's second aggravated DUI conviction was in violation of a very similar statute.

After quoting the classic definition of moral turpitude, the BIA stated that while crimes involving moral turpitude often involve an evil intent, specific intent is not a prerequisite to finding a crime involves moral turpitude. "While it is generally the case that a crime that is 'malum in se' involves moral turpitude and that a 'malum prohibitum' offense does not, this categorization is more a general rule than an absolute standard." (Id. at pp. 8-9.)

The Board reaffirmed the rule that "[i]n determining whether a crime involves moral turpitude, the specific statute under which the conviction occurred is controlling. . . . Thus, whether a particular crime involves moral turpitude 'is determined by the statutory definition or by the nature of the crime not by the specific conduct that resulted in the conviction." McNaughton v. INS, 612 F.2d 457, 459 (9th Cir. 1980). The crime must be one that necessarily involves moral turpitude without consideration of the circumstances under which the crime was, in fact, committed. See Goldeshtein v. INS, 8 F.3d 645, 647 (9th Cir. 1993)." (Id. at p. 9.)

(1) Simple DUI is not a Crime Involving Moral Turpitude.

The BIA agreed that "[S]imple DUI is ordinarily a regulatory offense that involves no culpable mental state requirement, such as intent or knowledge." (Id. at p. 9.) "We find that the offense of driving under the influence under Arizona law, does not, without more, reflect conduct that is necessarily morally reprehensible or that indicates such a level of depravity or baseness that it involves moral turpitude." (Id. at pp. 9-10.)

(2) DUI While Prohibited or Restricted From Driving Because

of A Prior DUI Conviction is a Crime Involving Moral Turpitude.

The BIA noted that a conviction of aggravated DUI under Arizona law may involve two separate forms of aggravating misconduct:

A person may be found guilty of aggravated DUI by committing a DUI offense while knowingly driving on a suspended, canceled, or revoked license or by committing a DUI offense while already on a restricted license owing to a prior DUI. We find that the serious misconduct described in either of these statutes involves a baseness so contrary to accepted moral standards that it rises to the level of a crime involving moral turpitude. A contrary conclusion is not mandated by the absence of a specific element of intent in the statutes because the aggravated circumstances necessary for a conviction under either section establish a culpable mental state adequate to support a finding of moral turpitude. (Id. at p. 10 [emphasis supplied].)

The Board found that the statutory elements required a showing that the offender "knew or should have known that his license was suspended." (Id. at p. 11.)

We find that a person who drives while under the influence, knowing that he or she is absolutely prohibited from driving, commits a crime so base and so contrary to the currently accepted duties that persons owe to one another and to society in general that it involves moral turpitude. (Id. at pp. 11-12 [emphasis supplied].)

Since there was apparently no record of conviction before the court, it was not clear whether respondent's license had been suspended, or merely restricted, since both conditions trigger the aggravated penalties. (See Board Member Rosenberg, concurring and dissenting, at pp. 17-18.) The Board nonetheless had "little difficulty concluding that an individual who has been given restricted permission to drive, specifically as a result of having driven under the influence, who commits another DUI while under such a restriction has engaged in conduct that contemporary society would deem to be grossly offensive to "'American ethics and accepted moral standards.'" Grageda v. INS, supra, at 921 (quoting Castle v. INS, supra, at 1066).

(3) California DUI Offenses Do Not Involve Moral Turpitude.

In California, the list of DUI offenses is short. See Vehicle Code §§ 23140(minor driving with 0.05% BA), 23152 (simple DUI), 23153 (DUI with injury), 23220 (drinking while driving). The complexities are found in Division 11.5, Vehicle Code §§ 23500 ff., entitled "Sentencing for Driving While Under the Influence." This makes it clear that the sentencing provisions are just that: not elements of the offense, but sentencing enhancements. Moreover, none of these sentencing enhancements involve driving on a suspended or revoked license; they all involve committing a new DUI offense within a certain time period after prior DUI-type convictions.

The foundation for the BIA's analysis in Lopez-Meza is the conclusion that the aggravating factor (e.g., driving on a suspended license) was an element of the offense, since the court looks only to the statutory elements in determining whether a conviction constitutes a CMT. The Supreme Court, however, has held that the aggravating factors in illegal reentry after deportation after aggravated felony conviction constitute sentence enhancements, rather than elements of the offense. If the aggravating factors are held to be sentence enhancements, they cannot contribute to the conclusion that a particular offense constitutes a CMT.

Therefore, the California sentencing factors that create felony DUIs because of prior convictions should not trigger the Lopez-Meza analysis since they do not constitute elements of the offense, and the immigration courts may not go beyond elements of the offense in determining whether or not a conviction involves moral turpitude.