OUI and Immigration in Massachusetts: Consequences for Non-Citizens, Visa Holders, and DACA Recipients

Scope of representation. Serpa Law Office represents non-citizen defendants on the criminal side of Massachusetts court proceedings only. Attorney Serpa does not represent clients in immigration court, before the Board of Immigration Appeals, or in removal proceedings. For representation in removal proceedings or before USCIS, clients should retain experienced immigration counsel. For complex matters requiring coordination between criminal defense and immigration counsel, Attorney Serpa works with the client’s immigration attorney to ensure that the criminal defense strategy accounts for all immigration consequences at every stage of the case.

OUI Under Massachusetts Law

Operating under the influence (OUI) is a criminal offense under M.G.L. c. 90, § 24. A first offense is a misdemeanor punishable by up to two and one-half years in a house of correction and a fine. Most first offenders resolve cases through the 24D alternative disposition involving a probationary period and a license suspension, or through a CWOF. The criminal penalties for OUI are discussed in detail at: OUI Defense in Massachusetts.

Does a First-Offense OUI Render a Non-Citizen Deportable?

A first-offense OUI conviction under M.G.L. c. 90, § 24 does not categorically qualify as a crime of moral turpitude (CIMT) under most circuit court analyses. The First Circuit has not definitively ruled on whether Massachusetts OUI is a CIMT, but the majority of federal circuit courts have held that a simple DUI/OUI offense does not involve the element of moral depravity required for CIMT classification. On the current state of the law, a first-offense OUI conviction is generally not a deportable offense for a lawful permanent resident or a ground of inadmissibility for a visa holder seeking admission.

However, several immigration consequences of an OUI charge are significant regardless of the CIMT analysis:

The CWOF on an OUI Charge Is a Federal Conviction

A CWOF on an OUI charge is a conviction for federal immigration purposes under 8 U.S.C. § 1101(a)(48)(A) and Matter of Punu (22 I&N Dec. 224, BIA 1998). While a first-offense OUI CWOF may not trigger deportability as a CIMT, it constitutes a conviction that:

• Counts as a prior OUI offense for purposes of calculating penalties on any future Massachusetts OUI charge, permanently eliminating the benefit of the first-offense 24D disposition.
• Counts as a conviction for DACA termination purposes if OUI is classified as a “significant misdemeanor” under DACA program guidelines.
• Counts as a conviction for naturalization purposes when assessing good moral character during the statutory period.
• Must be disclosed on immigration applications, visa renewal applications, and citizenship applications as a criminal conviction, regardless of Massachusetts’s classification of the CWOF as a non-conviction.

A non-citizen offered a CWOF on an OUI charge should not accept it without a full immigration consequences assessment. Pretrial probation under M.G.L. c. 276, § 87, which involves no admission, is generally immigration-neutral and should be negotiated as an alternative. See: The CWOF and Immigration: Why a CWOF Is a Federal Conviction.

OUI Involving Drugs: A Different Analysis

An OUI charge based on impairment by a controlled substance (OUI-Drugs) under M.G.L. c. 90, § 24 has a significantly different immigration analysis than alcohol-based OUI. A conviction for OUI-Drugs may constitute a controlled substance offense rendering a non-citizen deportable under 8 U.S.C. § 1227(a)(2)(B)(i), depending on which controlled substance is involved and how the offense is characterized under the categorical approach. The only exception to the controlled substance deportability ground is a single offense involving possession of 30 grams or less of marijuana for personal use. A conviction for OUI by means of any other controlled substance, including cocaine, prescription medications without a valid prescription, or marijuana in quantities exceeding the personal use exception, may trigger deportability.

Defense counsel must analyze the specific controlled substance identified in the OUI-Drugs charge under the categorical approach before any plea is entered. When the drug analysis creates deportation risk, the defense strategy must prioritize a not-guilty verdict at trial or a pretrial dismissal. See: Immigration Consequences of Massachusetts Criminal Charges.

Second and Subsequent OUI: Aggravated Felony Analysis

A second OUI conviction in Massachusetts is a misdemeanor punishable by up to two and one-half years in a house of correction. A third offense is a felony punishable by up to five years in state prison. The aggravated felony analysis under 8 U.S.C. § 1101(a)(43)(F), crime of violence with a sentence of one year or more imposed, may apply to a subsequent OUI conviction if a sentence of one year or more is imposed or suspended. The categorical approach analysis for OUI as a crime of violence is unsettled and depends on the specific statutory elements and the sentence imposed. Non-citizens facing a second or subsequent OUI charge must have the aggravated felony analysis completed before any disposition is accepted.

DACA Recipients and OUI

Under DACA program guidelines, a “significant misdemeanor” is a ground for DACA termination. Significant misdemeanors include DUI/OUI charges. A DACA recipient convicted of or who accepts a CWOF on an OUI charge, including a first offense, may have DACA status terminated. The clerk-magistrate hearing denial is the most effective protection for a DACA recipient facing an OUI charge that reaches the Massachusetts courts. A denied complaint creates no public criminal record and does not constitute a conviction under any standard.

Note that OUI charges arising from a warrantless arrest at the scene do not qualify for a clerk-magistrate hearing, the defendant is brought directly to arraignment. For DACA recipients arrested for OUI, the focus shifts to pretrial motion practice, breathalyzer suppression, and trial. Attorney Serpa maintains a perfect record of not-guilty verdicts in OUI jury trials. A not-guilty verdict eliminates the DACA termination consequence. See: Fighting an OUI in Massachusetts: How Cases Are Won at Trial.

F-1 and H-1B Visa Holders and OUI

An OUI arrest creates a public record that can come to the attention of the State Department and USCIS through law enforcement databases. The State Department has authority to prudentially revoke a visa upon notice of a criminal arrest. An F-1 student arrested for OUI may have their visa reviewed and revoked by the State Department before the criminal case is resolved.

An H-1B visa holder convicted of or who accepts a CWOF on an OUI charge must disclose the conviction on any future visa application, renewal, or change of status application. While a first-offense OUI may not be a deportable offense, an OUI conviction on the record will require explanation at every subsequent immigration proceeding and may affect discretionary decisions by immigration officials.

License Suspensions for Non-Citizens

An OUI arrest in Massachusetts triggers an immediate RMV administrative license suspension under the implied consent law, M.G.L. c. 90, § 24(1)(f)(1), independent of the criminal case. For a non-citizen who drives for work, including TN status holders, H-1B employees, or F-1 students who commute, the license suspension is an immediate practical consequence. The 15-day deadline to appeal a breathalyzer refusal suspension at the RMV applies to non-citizens the same as to citizens. See: Massachusetts OUI License Suspensions and What Happens After an OUI Arrest in Massachusetts.

Defense Priorities for Non-Citizens Charged With OUI

Pretrial motion practice. A Motion to Suppress the breathalyzer result or the traffic stop can eliminate the prosecution’s primary evidence and result in a pre-trial dismissal with no immigration consequence. See: Illegal Searches and Seizures in Massachusetts and Why a Massachusetts Breathalyzer Result Does Not Establish Guilt Beyond a Reasonable Doubt.

Pretrial probation over CWOF. When a favorable resolution short of trial is achievable, pretrial probation under M.G.L. c. 276, § 87 is generally immigration-neutral. Defense counsel must negotiate for pretrial probation rather than accepting the CWOF that the prosecution typically offers.

Trial. A not-guilty verdict eliminates all immigration consequences of the OUI charge. Attorney Serpa has tried OUI cases in which the defendant had a BAC reading above .08 and secured not-guilty verdicts. For non-citizens for whom a CWOF would trigger DACA termination or require immigration disclosure, the trial is often the only fully safe outcome. See: Fighting an OUI in Massachusetts: How Cases Are Won at Trial.

Related Pages

• OUI Defense in Massachusetts
• CWOF
• The CWOF and Immigration: Why a CWOF Is a Federal Conviction
• CWOF, Pretrial Probation, and Diversion in Massachusetts FAQs
• Massachusetts Felonies vs. Misdemeanors
• Crimes of Moral Turpitude and Aggravated Felonies in Massachusetts Cases
• Drug Crimes Defense in Massachusetts
• Arraignment in the Massachusetts Trial Court
• Clerk-Magistrate Hearings in Massachusetts
• Fighting an OUI in Massachusetts: How Cases Are Won at Trial
• College and University Student Criminal Defense
• Massachusetts OUI License Suspensions
• What Happens After an OUI Arrest in Massachusetts
• Should I Take the Breathalyzer in Massachusetts?
• Why a Massachusetts Breathalyzer Result Does Not Establish Guilt Beyond a Reasonable Doubt
• Illegal Searches and Seizures in Massachusetts
• Immigration Consequences of Massachusetts Criminal Charges
• Massachusetts OUI FAQs
• Criminal Defense for Licensed Professionals in Massachusetts

Contact Serpa Law Office at 617.936.0201 for a confidential consultation about the immigration consequences of a Massachusetts OUI charge. Boston office: 20 Park Plaza #400A. Quincy office: 500 Victory Rd., Suite 400A. Available 24 hours a day.