The recent United States Supreme Court ruling in Padilla v. Kentucky, 599 U.S. ____ (2010)  held that the Sixth Amendment requires defense counsel to provide affirmatve competent advice to a noncitizen defendnat regarding the immigration consequences of a guilty plea.  Absent such adivce a noncitizen may raise a claim of ineffective assitance of counsel.

Deportation is a criminal penalty not a collateral consequence of a conviction.  Professional standards for defense counsel require the attroney to investigate and advise noncitizens on the immigration consequences of the dispostion of a criminal case.  Furthermore, defense counsel is required to affirmatively offer advice on the consequences of conviction and cannot simply sit in silence on the issue.

Mr. Padilla was a lawful permanent resident immigrant who plead guilty to transportation of a large amount of marijuana in his tractor trailer.  As a result of his plea he faced deportation.  Mr. Padilla calimed that his counsel advised him that he didn’t have to worry because he had been in the county so long.  Mr. Padilla further stated that he relied on this statement when deciding whether or not to plead guilty.

In Mr. Padilla’s case the court found that removal as a consequence of his conviction was clear and that any failure to advise him of this falls below an objectively reasonable standard of representation.  As such, Mr. Padilla’s Sixth Amendment right to adequate counsel was violated.  

What does this mean for those of us handing DUI defense cases?  The immigration consequences in a drug conviction are much clearer than those in DUI cases.  While DUI is not currently considered grounds for deportation depends on the noncitizens curtrent status.  If the individual is in the county illegally the answer is clear.  Any conviction can be grounds for deportation.  On the other hand, if someone has any type of legal status the results of a single DUI conviction are much less clear.  There is also some concern that multiple DUI convictions can open up the possibility of deprortation as a “mental illness” or some other grounds.  

Fortunately for those of us practicing DUI law in Washngton there are some great resources.  If you are trying to determine the immigration results of any conviction you should start with the Washington Defender Association immigration resources.  There are lots of helpful printed materials to help you better understand how ICE and the federal courts approach criminal convictions.   WDA’s immigration attorneys are a great resource as well.

If you are a noncitizen charged with DUI (or any crime) it is essential that you hire a proven DUI attorney that understands immigration issues.