Another Hurdle for Certain DWI Defendants – Visa Revocation

DWI cases can be difficult and challenging under the best of circumstances.  Careful discovery review and analysis is crucial to any positive outcome. First, the defense attorney needs to have a thorough understanding of the standard battery of field tests that police employ in assessing drivers suspected of operating a vehicle while under the influence of alcohol.  These tests include the Horizontal Gaze Nystagmus test, the Walk-and-Turn test, and the One-Leg-Stand test.  Each of these tests must be administered properly, and the steps the arresting officer is supposed to follow, including the instructions given and the subject’s performance, should be clearly outlined in the discovery that the State provides in connection with the case.

Further, cases involving alcohol typically involve a breathalyzer test.  Here again, an officer certified to administer the test must do so following a relatively long and complex list of testing protocols.  The machine and chemicals used in performing the test must also pass muster, and the related documentation must be provided to defense counsel.

This brief description of the steps the State must follow in convicting someone for DWI shows that the goal is to document the basis for the offense as thoroughly as possible so as to raise the likelihood of a conviction to the point where it can be a foregone conclusion.  Defense counsel must therefore work diligently to understand the paperwork that the State provides in support of its case, and make appropriate motions and retain required experts where necessary.

The United States Department of State recently added a new layer of complexity to DWI cases for defendants holding non-immigrant visas.  DOS can now revoke a valid visa based upon a potential health-related ground of ineligibility when it is notified of an arrest or conviction for DWI or similar offenses.  Further, the arrest or conviction need not have occurred presently or in the immediate past.  Rather, it could have happened at any time within the prior five years.  Thus, the State Department can now revoke a valid non-immigrant visa when it receives notification from local law enforcement of the DWI arrest if it believes that the visa holder should not be in the country because of issues arising from their physical or mental health. Additionally, the defendant does not have to be convicted of DWI for DOS to take this harsh action.  The arrest alone is enough to result in visa revocation.

Every municipal court judge in New Jersey is supposed to instruct a DWI defendant who is not a US citizen that a DWI conviction can result in a denial of citizenship and/or deportation.  But this is new and different.  A non-citizen who is here with an otherwise validly issued visa can now lose their visa simply as a result of the DWI arrest.

Clearly, the State Department has decided to take a harsher approach to legally present non-citizens who are charged with DWI.  This recent development further increases the stakes for this class of DWI defendants.  Most defense attorneys are accustomed to asking any new client if he or she is a US citizen.  Now, if a DWI client responds in the negative, the attorney must also ask if they are in the country on a validly issued visa.  If the client is here on a visa, defense counsel must advise them that their arrest can jeopardize their visa, and that they should seek appropriate advice concerning their visa from an attorney who concentrates on immigration issues.

James S. Friedman, LLC, represents defendants in every municipal court in New Jersey.  If you have been charged with a traffic offense, DWI, or a drug offense in any New Jersey municipal court, contact us immediately.



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