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Drinking Driving conviction (DUI) - Definitive answer

Drinking Driving conviction (DUI) - Definitive answer

Old Aug 4th 2003, 10:59 am
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Default Drinking Driving conviction (DUI) - Definitive answer

Hi everyone,

Don't know if you read my post the other day, but it was about me making a K1 Fiancee visa application with a drink driving conviction.

http://britishexpats.com/forum/showt...hlight=mcjimbo

Anyway It sparked quite a debate, and no one seemed to have a definate answer whether it would or wouldn't effect my application. Also some speculated whether it was or wasn't a CRIME INVOLVING MORAL TURPITUDE (CIMT). Well I wrote to a specialist U.S. Immigration lawyer in London and got this answer, case closed:



"Will this drink driving conviction in your experience be a problem with my application for the K1 visa"

A conviction for drink driving in the UK is not a conviction of a crime involving moral turpitude and cannot by itself result in the denial of a visa application.

Edward Gudeon
Gudeon & Hodkinson
19/20 Grosvenor Street
London W1K 4QH



Needless to say i'm very happy about this because it means firstly I don't need to worry about not getting approved on my application, and secondly because I don't need to spend £1000 + on a lawyer.

Last edited by mcjimbo; Aug 4th 2003 at 11:04 am.
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Old Sep 20th 2003, 7:54 pm
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Default K-1 DUI etc

Re: K-1 visa and DUI

Let me detail my experience, which may or may not be helpful to the readers of this forum.
I had an UK DR10 (Driving while under the influence of alcohol) in 1984. No other vehicles were involved (it was a motorcycle) and no injuries occurred. I have also entered the US on the visa waiver (I-94W) scheme at least 12 times since 1992 without realising that I should have gone through a visa application and that all criminal convictions no matter how long ago need to be declared. The I-94W form speaks of crimes of moral turpitude and talks of prison sentences of 5 years plus. It gives no indication that any arrest (even if found not guilty) needs to be declared.
Last year (2002) I met and fell in love with a wonderful US woman and we decided to marry in April this year. My company was very supportive and agreed to transfer me to our US office.
We then began the K-1 fiancée visa process and then I discovered via the wonderful Internet my potential difficulties.
When Pack 3 arrived, then on the D-156 form I ticked the box ‘Yes’ in response to “Have you any convictions etc�. Having read through the Web stuff I just added an extra page giving the bare facts of my case (date, offence, fine £100 + cost, 12 month obligatory ban) and a line about no injuries etc. I feared that this DUI conviction could be a problem especially as the regulations state:
Visas
Inadmissibility
Conviction for DUI
Conviction for DUI of alcohol
--------------------------------------------------------------------------------
While not Prohibited from Driving
CLASSIFICATION:

Under INA 212(a)(1). Health-related grounds.
Under INA 212(a)(1)(A). In general.
Under INA 212(a)(1)(A)(iii). Physical or mental disorder.
Under INA 212(a)(1)(A)(iii)(II). Past history.
Alcohol abuser or addict.
Conviction for Driving Under Influence (DUI) of alcohol.
BRIEF DESCRIPTION: The beneficiary has been convicted for Driving Under the Influence (DUI) of alcohol – while not prohibited from driving.
DETAILS: DUI is not among explicitly referred grounds of inadmissibility. However,

1. Alcoholism is considered a mental disorder.

2. Alien is inadmissible (under this ground) only if:

the alien has history of behavior associated with the disorder (conviction for DUI is considered an evidence of such behavior),
the behavior has posed a threat to the property, safety, or welfare of the alien or others (conviction for DUI is considered an evidence of such behavior), and
the behavior is likely to recur or to lead to other harmful behavior (thus, to avoid inadmissibility, the beneficiary must present evidence that DUI is not likely to recur and not likely to lead to other harmful behavior).
DEFINITIONS: None.
SYNONYMS: Driving Under the Influence (DUI) of alcohol, drugs, or a combination.

FILING DATE RESTRICTIONS: None.

EXCEPTIONS: None.

SPECIFIC WAIVERS: Under INA 212(g)(3). Terms, conditions and controls, if any, are in discretion of INS (after consultation with the HHS).

Moreover, my other and greater fear was that all my visa waiver entries to the US were technically illegal and ignorance of the law is no excuse. Breaking UK law is one thing, but 12 potential US immigration offences held me paralysed with fear. I listed the dates of entry and the duration of the visits (all 1 – 2 weeks for business and holiday) on a separate piece of paper as there was not enough space on the DS-156. Internet searching quickly established that DUI is not a crime of moral turpitude. I applied for the Police Certificate required for the K-1 and contacted the court where I was convicted for the Memorandum of Conviction. My Police Certificate arrived completely clean! Despite the fact that it is stated that nothing is ever wiped from this certificate either this is untrue or otherwise my original offence was not entered for some unknown reason. My MOC was much more difficult to track down and indeed the court was close to giving up when it recovered details of the case from another court where they had mistakenly been transported. It eventually arrived 2 weeks after my Police Certificate and after at least 6 ’phone calls to the office dealing with the MOC’s.
I then awaited the K-1 medical and interview getting more and more panicky as that day (September 15th) drew nearer.
Let me tell you now that everyone at the doctors and Embassy was extremely friendly and helpful. But be aware of one issue. There is a medical form for the medical to be completed before the (doctor’s) interview with a question about being in trouble with the law due to alcohol (and other things too). Obviously I answered in the affirmative to this and, as requested, put brief details on the back. This form is passed to the Embassy and indeed another person with the receptionist that I took to be a consular official was checking forms while I was there (we joked about “Paperwork Reduction Program� and she said that this involved the form going from 2 to 6 pages!). The very friendly and pleasant woman doctor (stand-in for the expected Dr Phelan?) quizzed me on my past “alcoholism� of which DUI is defined as an indicator (see above). The fact that I have been teetotal since 1991 was the most positive part for me. Apparently if one has a DUI and is still drinking at the time of the interview then the blood sample that is taken for HIV and syphilis etc is also sent away for evidence of alcohol abuse – probably a liver function or similar test. This can delay the visa application many weeks. However, she said because I was teetotal for so long then there was little point in doing this. Incidentally I wondered whether if this had been done whether I would have had another difficulty in that I had Hepatitis A in 1994 and thus impaired liver function. I then walked to the interview at the Embassy (also be aware that you can go to the front of the queue – or line as I say now!). There was plenty of waiting about with short periods of activity and then I came to the vital interview with the swearing-in bit first. It couldn’t have been simpler. The friendly official asked a few simple questions about how I met my US fiancée, whether she’d been to the UK and then said that as I’d ticked “yes� to Q33 on the D-156 to tell me about the offence. I briefly explained the circumstances and he just said “That’ll be no problem. Just wait over there and we’ll sort your passport out�. I was in a daze not really comprehending that in around 90 seconds of interview that I’d made it and that absolutely nothing was said about my US visa waiver entries. I said “Thank you…..Thank you!� and sat down. Indeed I was asked a question relating a point of British divorce law (“What does ‘unknown party’ mean on a British divorce certificate?�)! 30 minutes later the K-1 sticker was in my passport and I was on my way!
I’m going to the US on October 1st and will be married on the 12th!
The other obvious question that I’ve never raised before is “Why does not the I-94W form ask about any conviction?� I suspect because Disneyworld would take a crash as foreign visitors dried up. It may be that post-911 the US is trying to route everyone through visa rather than the visa waiver route (rumours of the latter being scrapped) and this is a convenient way of “helping� that objective. Although the law existed before at the time of instigation of the visa waiver scheme it appears that it wasn’t rigorously enforced. I suspect that these laws are there so that if they really want to exclude you and are struggling for reasons, then this is ideal.
So to summarise. Be honest all the way through from the start and don’t hide anything. I suspect that it’s the hiding that’s the problem rather than the offence. Also I suspect that the more time that has elapsed since the conviction, the better. Also, I guess, be prepared for a longer wait should you still be drinking. Seems that the medical may be tougher than the interview. And the medical form will be correlated with your DS-156. The doctor does have to answer questions such as “How was the candidate’s demeanour etc?�

Last edited by AlanR; Sep 20th 2003 at 8:05 pm.
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Old Sep 20th 2003, 9:31 pm
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One small point--being honest is all very well, but it didn't get Gasherjohn's kids very far, if fact it got them more or less banned from the US, when if they'd used VW they could have visited their dad anytime they wanted.

Last edited by MrsLondon; Sep 20th 2003 at 10:52 pm.
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Old Sep 20th 2003, 10:48 pm
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Default Re: DIU

Originally posted by MrsLondon
One small point--being honest is all very well, but it didn't get Gnasherjohn's kids very far, if fact it got them more or less banned from the US, when if they'd used VW they could have visited their dad anytime they wanted.
With the benefit of hindsight........ I would have taken a chance with VW for my kids. Better the chance that they be put on a plane to go back than not allowed here at all!

John
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Old Sep 20th 2003, 11:29 pm
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Thank you for that very detailed story, AlanR. It will prove to be very helpful to a lot of people.

May I ask, where do we stand with the I94? I had no idea until this very moment that one needs to declare ALL convictions and that I shouldn't be using the visa waiver program! I am in shock! I have some minor traffic convictions, that certainly do not count as CiMTs...just no MOT and road fund disc etc... and I have never bothered to declare them for a visa waiver. The I94 clearly states you should declare CiMT or imprisonment of 5 years...it does not say you have to declare ALL convictions! That means that I have regularly been breaking the law about once a month for the last 3 years! What do I do now, about my embassy interview? If I go there and reveal my traffic convictions, am I going to be thrown out of the embassy in disgrace and forbidden a visa? Jesus....why do they make these things so blooming complicated! It seems like they keep adding bits just to trip you up!
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Old Sep 21st 2003, 2:40 am
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Originally posted by Rockgurl
Thank you for that very detailed story, AlanR. It will prove to be very helpful to a lot of people.

May I ask, where do we stand with the I94? I had no idea until this very moment that one needs to declare ALL convictions and that I shouldn't be using the visa waiver program! I am in shock! I have some minor traffic convictions, that certainly do not count as CiMTs...just no MOT and road fund disc etc... and I have never bothered to declare them for a visa waiver. The I94 clearly states you should declare CiMT or imprisonment of 5 years...it does not say you have to declare ALL convictions! That means that I have regularly been breaking the law about once a month for the last 3 years! What do I do now, about my embassy interview? If I go there and reveal my traffic convictions, am I going to be thrown out of the embassy in disgrace and forbidden a visa? Jesus....why do they make these things so blooming complicated! It seems like they keep adding bits just to trip you up!

LIke the previous poster I had a conviction (or two) for minor trespass offences during a student protest. I usdthe VWP unwittingly may times. I came clean when I wasdoing AOS. It was never a problem. No mention was made of the discrepancy, if one there was.

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Old Sep 21st 2003, 2:55 am
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Thanks Shannon...that's really helpful. The more I research this immigration thing the more paranoid I get! LOL.
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Old Sep 21st 2003, 7:16 am
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I too was completely unaware until I started the K-1 visa process that I shouldn't have been entering the US on the I-94W program.
You’ll find this on the US Embassy site (http://www.usembassy.org.uk/cons_web/visa/niv/press.htm):

Criminal Convictions and travel under the Visa Waiver Program
Travelers who have been arrested, even if the arrest did not result in a criminal conviction, and those with criminal records are not eligible to travel visa free under the Visa Waiver Program. This is not a new policy. There has been no change to this regulation since the Visa Waiver Program was implemented in July 1988.
Important: Some travelers may not be eligible to enter the United States visa free under the VWP. These include people who have been arrested, even if the arrest did not result in a criminal conviction, those with criminal records, (the Rehabilitation of Offenders Act does not apply to U.S. visa law), certain serious communicable illnesses, those who have been refused admission into, or have been deported from, the United States, or have previously overstayed on the visa waiver program. Such travelers must apply for special restricted visas. If they attempt to travel without a visa, they may be refused entry into the United States.
Note: Travelers with minor traffic offenses which did not result in an arrest and/or conviction for the offense may travel visa free, provided they are otherwise qualified.

(NOTE: “did not result in an arrest�). My comment.

The problem with the I-94W is not the actual offence, which Question B relates to and for which you should not get refused a visa except for crimes of moral turpitude etc. Anyway, waivers of this inadmissibility are available for specifics. The question that is the problem on the I-94W is Question D – have you….attempted to procure an entry into the US by fraud or misrepresentation? It is this that the official could claim was occurring..
Some travellers (I prefer this spelling!) are being turned back at US entry:
http://travel.guardian.co.uk/saturda...909441,00.html
Saturday March 8, 2003 The Guardian
British visitors are being refused entry to the US because of tough new counterterrorist procedures at American airport immigration desks. This week the Association of British Travel Agents (ABTA) warned travellers not to attempt entry using the Visa Waiver Programme if they have been arrested or convicted for any offence.
Frances Tuke, from the ABTA corporate affairs department, said: "We used to see one case a year of someone being turned away at a US airport. This year, there have been 20 cases already, often because of information that has come out while they are being grilled by an immigration officer."

However, that’s all the negative stuff. I found in practice that the “violations� of the I-94W were not even mentioned and the officials were extremely helpful. I’m sure it’s best to try and work with them to find the positive outcome and not against them!

Last edited by AlanR; Sep 21st 2003 at 7:33 am.
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Old Sep 21st 2003, 5:03 pm
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Originally posted by Shannon
LIke the previous poster I had a conviction (or two) for minor trespass offences during a student protest. I usdthe VWP unwittingly may times. I came clean when I wasdoing AOS. It was never a problem. No mention was made of the discrepancy, if one there was.

Shannon
I really don't think a 'purely political' offence, (such as a demo) would count as a CIMT.
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Old Sep 21st 2003, 5:31 pm
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Originally posted by MrsLondon
I really don't think a 'purely political' offence, (such as a demo) would count as a CIMT.

I should hope not. The UK isn't quite the police state that the USA has recently become.
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Old Sep 21st 2003, 7:30 pm
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Originally posted by tbiller
I should hope not. The UK isn't quite the police state that the USA has recently become.
Poll Tax riots anyone?
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Old Sep 21st 2003, 7:37 pm
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Originally posted by DCMark
Poll Tax riots anyone?
1990 as I recall. As I was there in Trafalgar Square being beaten with a stick by a copper on a horse for having the temerity to attempt to photograph one of his colleagues perhaps I have a better recall of it than you do?

Working as I was for the Sunday Express (one of the more right-wing of the UK's newspapers) I did feel more than slightly aggrieved at being targeted BY The Establishment whilst working FOR it...

Last time I checked if a policeman asks to see my ID here I can tell him to bugger off. Try saying that to a copper in the USA.

And yes, I'll still go through all the crap that's required to live there. The things we do for love, eh?

Sorry to the gang for dragging this way OT.
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Old Sep 21st 2003, 10:13 pm
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I am throughly disgusted by the direction of the US. But to hear an Englishman criticize the US in terms of police state tacitcs makes me laugh. I think dear Margaret Thatcher prefected your own verison of police state tactics on the coal miners and anyone else in her way.

And you do not have to provide ID to a police officer. Driving, yes. Otherwise, no unless you have been suspected of a crime.


Originally posted by tbiller
1990 as I recall. As I was there in Trafalgar Square being beaten with a stick by a copper on a horse for having the temerity to attempt to photograph one of his colleagues perhaps I have a better recall of it than you do?

Working as I was for the Sunday Express (one of the more right-wing of the UK's newspapers) I did feel more than slightly aggrieved at being targeted BY The Establishment whilst working FOR it...

Last time I checked if a policeman asks to see my ID here I can tell him to bugger off. Try saying that to a copper in the USA.

And yes, I'll still go through all the crap that's required to live there. The things we do for love, eh?

Sorry to the gang for dragging this way OT.
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Old Sep 21st 2003, 10:29 pm
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Originally posted by DCMark
I am throughly disgusted by the direction of the US. But to hear an Englishman criticize the US in terms of police state tacitcs makes me laugh. I think dear Margaret Thatcher prefected your own verison of police state tactics on the coal miners and anyone else in her way.

And you do not have to provide ID to a police officer. Driving, yes. Otherwise, no unless you have been suspected of a crime.
I'm so glad to have to provided a little amusement into your Sunday. Your reply offers so much in terms of a response but may I suggest we leave it at that. This is neither the time nor the place for such discussions.
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Old Sep 22nd 2003, 1:01 am
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If the UK is such a police state how come we don't ask Americans about minor arrests that didn't result in a conviction 30 years ago (or whatever) in order to allow them in the country like the US does UKC (and all VW countries)? How come if a USC is refused entry into the UK they just have their passports taken away and are allowed in until the next available flight, rather than put them in a cell like the US does to UKC refused entry?
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