Driving in California - A warning to all you non-resident newlyweds.

[angie007 0]

Hey Agamoto, thanks for the post..I know that I am not supposed to be driving with my Canadian driver's license but I do anyways, but when I read your post and the offenses you got ,it made me scared..so thank you so much...It's so nice to be a part of VJ community where people care for each other...

[lucyrich 20]

I'd be interested if anyone actually went to court on this where the cop showed up and it was contested.

I haven't done any legal research, but my gut reaction of this California law (or at least this interpretation of the law), is that it is unconstitutional (possibly under the Supremacy, interstate commerce clauses and the Federal government's authority to control immigration).

Here, the Federal Government says the Canadian is not a resident of the U.S. California can't now say, the Canadian is a Californian resident. Also under federal case law, domicile and residency is determined by the test: presence and an intent to remain indefinitely. I'd argue here, there is no intent to remain indefinitely unless proper status is conferred. Only at the point are you a Californian resident.

I don't think the Constitution requires that words be defined the same for all purposes in all bodies of law.

The California Vehicle Code itself contains two different definitions of "resident". CVC 516 defines who is a resident for the purpose of vehicle registration, and CVC 12505 tells who is a resident for the purpose of getting a drivers' license. I suspect Federal law has a bunch of definitions for different purposes. I know Federal tax law defines residency differently than immigration law, for example.

Note also that the definition of "residence" in the Immigration and Nationality Act has absolutely nothing to do with whether or not someone has a green card or any other sort of immigration status. And the definition of "residence" explicitly says that it has nothing to do with the person's intent in any way. The INA definition of resident (from INA 101(33)) is The term "residence" means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. Compare that to the CVC definition from 12505 Residency shall be determined as a person's state of domicile. "State of domicile" means the state where a person has his or her true, fixed, and permanent home and principal residence and to which he or she has manifested the intention of returning whenever he or she is absent.

To me, the two definitions are pretty darn close, except that the California one includes intent, while the Federal immigration one doesn't.

Edited May 19, 2009 by lucyrich

[bobzurunkel 1]

I'd be interested if anyone actually went to court on this where the cop showed up and it was contested.

I haven't done any legal research, but my gut reaction of this California law (or at least this interpretation of the law), is that it is unconstitutional (possibly under the Supremacy, interstate commerce clauses and the Federal government's authority to control immigration).

Here, the Federal Government says the Canadian is not a resident of the U.S. California can't now say, the Canadian is a Californian resident. Also under federal case law, domicile and residency is determined by the test: presence and an intent to remain indefinitely. I'd argue here, there is no intent to remain indefinitely unless proper status is conferred. Only at the point are you a Californian resident.

I don't think the Constitution requires that words be defined the same for all purposes in all bodies of law.

The California Vehicle Code itself contains two different definitions of "resident". CVC 516 defines who is a resident for the purpose of vehicle registration, and CVC 12505 tells who is a resident for the purpose of getting a drivers' license. I suspect Federal law has a bunch of definitions for different purposes. I know Federal tax law defines residency differently than immigration law, for example.

Note also that the definition of "residence" in the Immigration and Nationality Act has absolutely nothing to do with whether or not someone has a green card or any other sort of immigration status. And the definition of "residence" explicitly says that it has nothing to do with the person's intent in any way. The INA definition of resident (from INA 101(33)) is The term "residence" means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent. Compare that to the CVC definition from 12505 Residency shall be determined as a person's state of domicile. "State of domicile" means the state where a person has his or her true, fixed, and permanent home and principal residence and to which he or she has manifested the intention of returning whenever he or she is absent.

To me, the two definitions are pretty darn close, except that the California one includes intent, while the Federal immigration one doesn't.

Yes, and it's that "intent" which makes things a little tricky for me because I do indeed have every intent to stay here, but only if my I-485 is approved.

I will present my current bank statements, my healthcare bills, credit card bills and my sole proprietorship corporate info from Canada if necessary and defend against the presumption of California residency. I entered the country on a non-immigrant visa. I've continued to maintain my connections to Canada. I cannot rightfully stay in the USA at all if my AOS is denied... My wife's domicile, where I am "living" at for the time being, (The officer asked me where I was living, and for how long) cannot be considered my "true, fixed, and permanent home" until such a time that the AOS is approved.

I plea May 26th, I'll mention all this quickly to the judge at the time in hope for an immediate dismissal.

[tony1343 0]

agamota,

I'm not sure how things work in California, but you may want to try talking to the prosecutor first (perhaps before your court date). They might be willing throw it out.

Unfortunate situation, where you fall in between the cracks (here's a ticket b/c you don't have a California driver's license; sorry we won't give you a California driver's license).

[Dr. Obvious 49]

Hmm, score one for Indiana because cops here were never interested in questioning my husband driving around on a German license when he was doing it. They had negative interest in it. I don't even know if they verified it was real or not. He never had a translation to go with it. Never questions based on the foreign license about immigration status. They didn't care. In fact, after the first wreck about 15 days after he got here where he was the driver (but 100% not at fault), he offered the officer some proof of status if he needed it and the officer just looked at him like "####### is this and why TF do I care?'.

Interesting about California.

[Caladan 19]

I'd be interested if anyone actually went to court on this where the cop showed up and it was contested.

I haven't done any legal research, but my gut reaction of this California law (or at least this interpretation of the law), is that it is unconstitutional (possibly under the Supremacy, interstate commerce clauses and the Federal government's authority to control immigration).

Here, the Federal Government says the Canadian is not a resident of the U.S. California can't now say, the Canadian is a Californian resident. Also under federal case law, domicile and residency is determined by the test: presence and an intent to remain indefinitely. I'd argue here, there is no intent to remain indefinitely unless proper status is conferred. Only at the point are you a Californian resident.

Also, this interpretation would seem to say that one who has a summer house in California (and so lives there for say 4 months) would need a California license. Yet, their residency wouldn't change to California since there is no intent to remain there indefinitely. This interpretation impedes interstate travel and commerce. But I'm just spouting, and I'd have to do research to back some of this up.

I'd like to think that over such a minor violation, if you said any of this, the prosecutor would just drop the charges.

The states can determine what counts as residency for themselves. Think of it like this: you could be making a permanent home in California or wherever illegally. You'd still be *residing* in California. My friend who is moving to Arizona on an H1-B will become a resident of Arizona, even though he is not a permanent resident of the United States and would not stay in Arizona if he lost his job. My friends in grad school are residents in Connecticut though they are here on F-1s. Or, C. is not a resident of Pennsylvania even though he is a permanent resident of the U.S., because we live in Connecticut. C. counted as a part-year resident when we did our taxes in Connecticut in 2007, and we counted the date from when he moved here, not from when his AOS was approved. In California, it's ten days. In Connecticut, it's thirty. The concepts come apart: one is determined by your immigration status, the other is determined by physical presence and intent to remain there indefinitely.

"Intent" often takes on a different meaning under the law, so I'm not sure your argument holds. And even if it did, he meets the presence test and he has intent to make California his permanent home indefinitely (that doesn't mean "forever", that means "with no definite end"), and there is evidence of that in the form of the AOS, the fact that he's moved here, etc. Whether he'd leave if he didn't get his permanent residency may be beside the point.

I think he should talk to a lawyer, preferably one that is used to the law and how it affects immigrants. (Catholic Charities, dude, you're in California, they know how to deal with immigrants.) It would not surprise me if this can be dropped or pled down. But saying that California's ability to determine its residency violates federal sovereignty strikes me as a non-starter.

[bobzurunkel 1]

The states can determine what counts as residency for themselves. Think of it like this: you could be making a permanent home in California or wherever illegally. You'd still be *residing* in California. My friend who is moving to Arizona on an H1-B will become a resident of Arizona, even though he is not a permanent resident of the United States and would not stay in Arizona if he lost his job. My friends in grad school are residents in Connecticut though they are here on F-1s. Or, C. is not a resident of Pennsylvania even though he is a permanent resident of the U.S., because we live in Connecticut. C. counted as a part-year resident when we did our taxes in Connecticut in 2007, and we counted the date from when he moved here, not from when his AOS was approved. In California, it's ten days. In Connecticut, it's thirty. The concepts come apart: one is determined by your immigration status, the other is determined by physical presence and intent to remain there indefinitely.

"Intent" often takes on a different meaning under the law, so I'm not sure your argument holds. And even if it did, he meets the presence test and he has intent to make California his permanent home indefinitely (that doesn't mean "forever", that means "with no definite end"), and there is evidence of that in the form of the AOS, the fact that he's moved here, etc. Whether he'd leave if he didn't get his permanent residency may be beside the point.

I think he should talk to a lawyer, preferably one that is used to the law and how it affects immigrants. (Catholic Charities, dude, you're in California, they know how to deal with immigrants.) It would not surprise me if this can be dropped or pled down. But saying that California's ability to determine its residency violates federal sovereignty strikes me as a non-starter.

Here's what it says in the vehicle code, 12505 CVC... Residency shall be determined as a person's state of domicile. "State of domicile" means the state where a person has his or her true, fixed, and permanent home and principal residence and to which he or she has manifested the intention of returning whenever he or she is absent.

My true, fixed and permanent home/principal residence AND to which I have manifested the intention of returning... Intent alone isn't enough.

If I were still paying rent/mortgage on a place in Canada I'd be in better shape here, but I'm not, yet I still have my company there, my bank accounts, my credit cards, my provincial health plan... I could resume residency there tomorrow if necessary, and it WOULD be necessary to do so if the I-485 is denied, thus I argue that the residence I am staying at here in California, having entered the USA on a non-immigrant K1 visa, is NOT my true, fixed and permanent home and principal residence and since all other listed examples of prima facie proof of residency from Section 516 and 12505 do not apply, I'm not a california resident.

I don't think I need a lawyer or legal help to argue that, I'll give that info to the judge and he can interpret it hopefully the same as I am... If I'm convicted, I'll attempt to appeal it.

[Caladan 19]

Right, but you've applied for permanent residency, which manifests your intention, etc. The K-1 is a non-immigrant visa but it is one with a defined path to permanent residency.

I'm not saying don't try, and plenty of traffic things get tossed out all the time, but there's not a conflict between being found to be a resident of a state for state law purposes and being a non-resident of the nation for federal immigration purposes. If I were you, I'd make the case based not on you not being a resident of the U.S., but on not being a resident of California. The reason I'm suggesting a lawyer is that with all of the immigrants in California, they might know a way to present it to the judge.

Are you able to get a DL now that you've filed for AOS?

[tony1343 0]

I'd agree with what other people have said. One question, would a conviction under this affect immigration status at all? I wasn't suggesting arguing unconstitutionality (at least not unless it is a last ditch effort), but just thinking/rambling.

Is this in a municipal/traffic court or normal court? Lawyer might be a good idea especially if s/he isn't too expensive. Have you tried contacting some for prices?

One of the biggest problems with just going to Court and arguing it is that you will end up waiting for hours (assuming this is municipal/traffic court like what I've had to wait in the past). Lawyers get to butt in line. Also, they might want to push you off to another date if you want to contest it, etc.

Also, with a speeding ticket if you talk to a prosecutor ahead of time they'll sometimes throw it out. While if you wait until the Court date, at the minimum you'll have to pay court costs. Not sure if the prosecutor will want to talk to a non-attorney ahead of time, but might be worth trying (since prosecutor's typically have discretion in what to prosecute).

You might be able to talk to an attorney and get a free consultation/advice (and only pay if you hire them and have them go to court / talk with the prosecutor). Anyway good luck.

[bobzurunkel 1]

Right, but you've applied for permanent residency, which manifests your intention, etc. The K-1 is a non-immigrant visa but it is one with a defined path to permanent residency.

I'm not saying don't try, and plenty of traffic things get tossed out all the time, but there's not a conflict between being found to be a resident of a state for state law purposes and being a non-resident of the nation for federal immigration purposes. If I were you, I'd make the case based not on you not being a resident of the U.S., but on not being a resident of California. The reason I'm suggesting a lawyer is that with all of the immigrants in California, they might know a way to present it to the judge.

Are you able to get a DL now that you've filed for AOS?

Aha! What I've applied for is US residency, not California residency. Just because I'm applying to become a permanent resident of the USA doesn't necessarily mean I want to permanently reside in California, And again, just because I have intent, that's not enough, that magic "and" saves my ####, I think... There's no way this home here can be considered my "true, fixed and permanent address".

No, I can't get the DL until I have something from the DHS/USCIS that says I'm allowed to be here... I'm told by people here that they'll do it with a EAD, but I was told by the supervisor at the dmv they'd only give the license with at least a 797C notice of action for an approved I-485.

Making my case against the presumed california residency... I've already mentioned thats exactly where I'll make my stand. I know my US immigration status is irrelevant. I can't afford the $1500 it will cost for a lawyer. Already called the catholics, they won't help.

[bobzurunkel 1]

I'd agree with what other people have said. One question, would a conviction under this affect immigration status at all? I wasn't suggesting arguing unconstitutionality (at least not unless it is a last ditch effort), but just thinking/rambling.

Is this in a municipal/traffic court or normal court? Lawyer might be a good idea especially if s/he isn't too expensive. Have you tried contacting some for prices?

One of the biggest problems with just going to Court and arguing it is that you will end up waiting for hours (assuming this is municipal/traffic court like what I've had to wait in the past). Lawyers get to butt in line. Also, they might want to push you off to another date if you want to contest it, etc.

Also, with a speeding ticket if you talk to a prosecutor ahead of time they'll sometimes throw it out. While if you wait until the Court date, at the minimum you'll have to pay court costs. Not sure if the prosecutor will want to talk to a non-attorney ahead of time, but might be worth trying (since prosecutor's typically have discretion in what to prosecute).

You might be able to talk to an attorney and get a free consultation/advice (and only pay if you hire them and have them go to court / talk with the prosecutor). Anyway good luck.

Hey there,

It's regular criminal court, since it's a criminal misdemeanor charge... The 485 does ask if I've ever been dinged with NON traffic misdemeanors, so I doubt that's a big problem... My big concern is problems with insurance and having it on my permanent record... Many employers do only BASIC criminal checks for new employees, some of the cheaper criminal check servicers don't go into details about what the charge/conviction was and simply list "misdemeanor". I'm trying to avoid that.

Yes, I'm going to plea not guilty and then deal with the prosecutor later... Sure hope my bail isn't set at some ridiculous price.

[TinTin and Samby 11]

I'd agree with what other people have said. One question, would a conviction under this affect immigration status at all? I wasn't suggesting arguing unconstitutionality (at least not unless it is a last ditch effort), but just thinking/rambling.

Is this in a municipal/traffic court or normal court? Lawyer might be a good idea especially if s/he isn't too expensive. Have you tried contacting some for prices?

One of the biggest problems with just going to Court and arguing it is that you will end up waiting for hours (assuming this is municipal/traffic court like what I've had to wait in the past). Lawyers get to butt in line. Also, they might want to push you off to another date if you want to contest it, etc.

Also, with a speeding ticket if you talk to a prosecutor ahead of time they'll sometimes throw it out. While if you wait until the Court date, at the minimum you'll have to pay court costs. Not sure if the prosecutor will want to talk to a non-attorney ahead of time, but might be worth trying (since prosecutor's typically have discretion in what to prosecute).

You might be able to talk to an attorney and get a free consultation/advice (and only pay if you hire them and have them go to court / talk with the prosecutor). Anyway good luck.

Hey there,

It's regular criminal court, since it's a criminal misdemeanor charge... The 485 does ask if I've ever been dinged with NON traffic misdemeanors, so I doubt that's a big problem... My big concern is problems with insurance and having it on my permanent record... Many employers do only BASIC criminal checks for new employees, some of the cheaper criminal check servicers don't go into details about what the charge/conviction was and simply list "misdemeanor". I'm trying to avoid that.

Yes, I'm going to plea not guilty and then deal with the prosecutor later... Sure hope my bail isn't set at some ridiculous price.

And all this cause you want to proof a point??? A bit over the top in my book. I think a serious dose of perspective is in order here. If you go into some low level court trying to plead legal interpretations, you better be all-in for a long ride of appeals (read years and mucho $$$$$$$$$). Heck, more than likely, you wont even be seeing a judge. It will be some kind of court administrator adjudicating 50 cases with about 2 minutes allocated per case. He will have zero interest in looking at anyting in any new novel way. His goal for the day - get through the 50 cases so that he can get to the next 50 cases scheduled for tomorrow.

-Samby

[bobzurunkel 1]

And all this cause you want to proof a point??? A bit over the top in my book. I think a serious dose of perspective is in order here. If you go into some low level court trying to plead legal interpretations, you better be all-in for a long ride of appeals (read years and mucho $$$$$$$$$). Heck, more than likely, you wont even be seeing a judge. It will be some kind of court administrator adjudicating 50 cases with about 2 minutes allocated per case. He will have zero interest in looking at anyting in any new novel way. His goal for the day - get through the 50 cases so that he can get to the next 50 cases scheduled for tomorrow.

-Samby

Whoa, what??

Just to prove a point? The point that I'm NOT a resident of California and that I, and other people in the same boat as I am in the future are NOT guilty of a criminal misdemeanor that brings with it a maximum 6 months in jail and $1000 fine? Then yes, you're darn right I'm going to defend myself in such a way. This is a criminal charge, not a ticket for running a stop sign. I'll be in front of a real judge. I don't think my perspective is out of whack at all.

I'll be pleading not guilty, paying my bail money and I'll be requesting a trial by written declaration so I can get my points across succinctly to the judge that reviews the case without even having to appear again. I'll be sure to let everyone here know how that all works out.

[TinTin and Samby 11]

And all this cause you want to proof a point??? A bit over the top in my book. I think a serious dose of perspective is in order here. If you go into some low level court trying to plead legal interpretations, you better be all-in for a long ride of appeals (read years and mucho $$$$$$$$$). Heck, more than likely, you wont even be seeing a judge. It will be some kind of court administrator adjudicating 50 cases with about 2 minutes allocated per case. He will have zero interest in looking at anyting in any new novel way. His goal for the day - get through the 50 cases so that he can get to the next 50 cases scheduled for tomorrow.

-Samby

Whoa, what??

Just to prove a point? The point that I'm NOT a resident of California and that I, and other people in the same boat as I am in the future are NOT guilty of a criminal misdemeanor that brings with it a maximum 6 months in jail and $1000 fine? Then yes, you're darn right I'm going to defend myself in such a way. This is a criminal charge, not a ticket for running a stop sign. I'll be in front of a real judge. I don't think my perspective is out of whack at all.

I'll be pleading not guilty, paying my bail money and I'll be requesting a trial by written declaration so I can get my points across succinctly to the judge that reviews the case without even having to appear again. I'll be sure to let everyone here know how that all works out.

Whoa..Yes! The POINT is that this situation is one that didnt need to exist. You ARE a Licensed Driver. Your License is issued from the country where you have (and continue to have, your permanent residence (canada) until such time as you give up that permanent residence location - by a combination of desire (yours) and ability (USCIS approval). People drive every day in states across the USA, including CA, with international licenses. There is zero problem with that as long as that international license is valid. What they dont do is tell the cop that pulls them over that their permanent residence is down the street in the next town, especially since they know that the drivers license they have in their pocket is from Canada.

All that said..I dont wish bad outcomes on anyone and I do hope that the cards will fall in the right place for you and that you will get out of this situation unscathed. As I have read from all of your detailed posts, I can see that you have been doing a lot of research. No doubl one of the things you found out about CA Veh. Code 12500(a) Driving without a Valid Drivers License is that it can be issued as either a Misdemeanor or a simple Infraction. Even if the cop issued the ticket in the Misdemeanor form, the court can modify that to an Infraction variety. Both forms are also able to be deemed "Correctable" by the Court. Although, your ability to "Correct" this problem may be hampered by the timeline required until you get sufficient Documentary Proof for CA to issue you a CA Drivers License.

Good luck to you.

-Samby

[bobzurunkel 1]

Whoa..Yes! The POINT is that this situation is one that didnt need to exist. You ARE a Licensed Driver. Your License is issued from the country where you have (and continue to have, your permanent residence (canada) until such time as you give up that permanent residence location - by a combination of desire (yours) and ability (USCIS approval). People drive every day in states across the USA, including CA, with international licenses. There is zero problem with that as long as that international license is valid. What they dont do is tell the cop that pulls them over that their permanent residence is down the street in the next town, especially since they know that the drivers license they have in their pocket is from Canada.

All that said..I dont wish bad outcomes on anyone and I do hope that the cards will fall in the right place for you and that you will get out of this situation unscathed. As I have read from all of your detailed posts, I can see that you have been doing a lot of research. No doubl one of the things you found out about CA Veh. Code 12500(a) Driving without a Valid Drivers License is that it can be issued as either a Misdemeanor or a simple Infraction. Even if the cop issued the ticket in the Misdemeanor form, the court can modify that to an Infraction variety. Both forms are also able to be deemed "Correctable" by the Court. Although, your ability to "Correct" this problem may be hampered by the timeline required until you get sufficient Documentary Proof for CA to issue you a CA Drivers License.

Good luck to you.

-Samby

Hi again... I agree with you 100%. It would be my recommendation to anyone else here on visa journey to tell the policeman, right up front, that you are just visiting California on a K1 non-immigrant visa, don't even mention status adjustment, EAD, greencards or anything else and hope that's enough to spook/confuse them into not issuing a ticket for violating 12500a CVC.

However, in my case, the cop questioned me like this after he took my license and as you can see, I was a little stuck:

Cop: This is not your name on the car registration, who's name is this?

Me: It's my wife's car, we were recently married and she hasn't been able to change the names on everything yet. (I was driving with my stepdaughter)

Cop: Is this your current residence? (pointing at my Canadian address on the CAN license)

Me: Well, no. (Technically it isn't my Canadian residence, but an older mailing address in Canada)

Cop: So, where are you living right now?

Me: Here in Burbank at my wife's house.

Cop: How long have you been here in California?

Me: 4 months

Cop: Are you working here?

Me: No.

Cop: Were you aware that you need a California license after living here for 10 days?

Me: According to what I read in the DMV driver's handbook, it says I can drive on my Canadian license until I get residency.

Cop: That's not what I understand... If you're living here in California, you need to get a California license within 10 days.

Me: But I'm not a resident!

Cop: I'm not going to argue with you about it, you said you are living here, that's the law, you can take it up with the judge... FYI, I can arrest you and impound this vehicle for 30 days, I'm being a nice guy here as it is.

Me: OK, Thank you, have a nice day, I love you! (Ok, I didn't say I love you)

I will plead not guilty tomorrow morning and attempt to talk to the prosecutor later on to have the misdemeanor either dismissed or reduced to an infraction... If he won't agree to that, I don't really have a choice but to take it to trial. I do not want to have ANY criminal record at all, and my only way out of this, my only defense is to show that I am not a California resident. I hope it doesn't go that far, but I have to be prepared if it does.

Yes, i've done a great deal of research, i even found that Britney Spears went all the way to jury trial for the exact same charge here in California last year. It ended in a hung jury with the prosecutor refusing to ask for a retrial. you can read about it here: http://www.iconocast.com/B000000000000074/G1/News1.htm Of course Ms. Spears was a US citizen and didn't have to worry about I-485 approval/denial first before deciding which state she wants to call her domicile.

Interesting stuff.