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

[The_Dude 1,142]

In areas where there isn't a clear cut definition in law regarding the situation, an officer will write the citation and let the court sort it out. I would definitely contest it in court. However, when you contest a citation in court, there can be additional penalties added on.

[thetreble 19]

Federal rules trump state rules......."Technically" you're a non immigrant since you're a K-1. And a non immigrant doesn't have INTENT to stay in the country. Only when the permanent resident is approved, you become a resident.

I believe you're referring to the oft quoted reference that federal LAW trumps state LAW, which is generally true. However, federal DEFINITIONS do not trump state DEFINITIONS when it comes to interpreting the laws. Federal definitions apply to interpreting federal law, and state definitions apply to interpreting state law. I was commenting yesterday in a thread where someone had a problem because his state (Texas, as it happens) did not consider him to have a conviction on his criminal record, but USCIS clearly DID consider him to have a conviction. In fact, his exact situation was described in the USCIS handbook as a conviction.

Obviously Officer Fife can't figure this out on the road. Take it to court and let a competent judge figure it out. They love rules and procedures.

This I agree with completely. Traffic cops are generally aware of traffic law, but they may have no clue about immigration law. Traffic cops frequently issue citations when no law has been violated. There's no point arguing with the cop. Sign the ticket, say thank you with a smile, and prepare for your day in court.

An additional problem here is that the judge will be a traffic court judge. He may not know much more about immigration law than the traffic cop. Fortunately, California is a state with a large immigrant population, so there's a good chance the judge will at least have dealt with these situations before. Just to be on the safe side, read the California codes and know what your position is when you go to court. Be prepared to cite the specific codes to the judge, and have your arguments summarized (including California code citations) on a short document you can give to the judge. This way, if he isn't sure what to do, he can adjourn for a few minutes while he goes to his chambers and reviews your arguments, and reads the relevant code sections.

It won't do any good to argue that federal immigration law doesn't define you as a "resident". As I noted above, the federal definition isn't what counts when interpreting state law. You have to convince the judge that you have a legal right to drive under California law. Only refer to federal law if the California code specifically refers to it.

In the worst case, you might end up having to accept that you can't drive until you get a California license. That's what foreign spouses from most other countries end up having to deal with.

Very good advice!!

[Killer_Clown_2009 0]

It'll be interesting to see what happens in court. I have been in the US since 2005, driving with my Ontario license with no issues. I just got my MA license this month as the Ontario one had expired. They didn't even ask to see my green card. I was stopped for speeding once, but the officer didn't care that I was using my Ontario license, he just warned me for speeding and let me go.

Really?

Because here in New Jersey it's against the law to drive a car with NJ plates and be using another state's or provinces driver's license. Your plate origin must match your license origin if you are a resident.

Yeah, he didn't really seem to care. My AOS was pending at the time and I explained that I didn't have a SSN and couldn't get a license for here in MA without one. He seemed a kind type and maybe was just giving me a break (as he did with the speeding thing too).

[bobzurunkel 1]

Try not to get too hyped up about it.

LOL, easy for you to say... This isn't a parking ticket I'm facing, it's a criminal misdemeanor... Permanent record stuff.

It is easy for me to say actually because if you are that concerned, then hire a lawyer.

Wow... Let them eat cake much?

I can't afford a lawyer, I haven't been working now for 4 months awaiting EAD and we're tapped out... thats why i posted asking for advice on presenting this all to a judge, thanks for your "input" anyway.

[The_Dude 1,142]

Try not to get too hyped up about it.

LOL, easy for you to say... This isn't a parking ticket I'm facing, it's a criminal misdemeanor... Permanent record stuff.

It is easy for me to say actually because if you are that concerned, then hire a lawyer.

Wow... Let them eat cake much?

I can't afford a lawyer, I haven't been working now for 4 months awaiting EAD and we're tapped out... thats why i posted asking for advice on presenting this all to a judge, thanks for your "input" anyway.

If you can't afford a lawyer, then you should go to LegalAid for assistance. There generally is a legal aid office in most courthouses.

You never stated that you flat out could not afford an attorney. She suggested you get an attorney because you felt this is a serious matter. You don't need to get all pissy about it.

[thetreble 19]

Here we go with another one-thread wonder. Dude, I gave you a 100% acceptable answer which was in no way cruel or mean spirited.

[bobzurunkel 1]

If you can't afford a lawyer, then you should go to LegalAid for assistance. There generally is a legal aid office in most courthouses.

You never stated that you flat out could not afford an attorney. She suggested you get an attorney because you felt this is a serious matter. You don't need to get all pissy about it.

I apologize for getting pissy about it, but gimmie a friggin' break... I'm a non-resident alien who doesn't want to have his application for US residency threatened by a criminal conviction on a misdemeanor charge and she's telling me not to get hyped up about it?

It IS a serious matter, even a traffic misdemeanor can have an impact on my future... criminal background checks for employment/travel etc.

I challenge anyone in my position not to feel a little "hyped" about it themselves.

As I stated in the original post,

"I've got to appear in court by May 26th, does anyone have any suggestions as to how to present all this to the court or even a prosecutor before hand concisely so I can get this charge dismissed?"

I didn't feel it was necessary to let everyone know just how cash strapped I am, but thanks for the help anyway!

[bobzurunkel 1]

You never stated that you flat out could not afford an attorney. She suggested you get an attorney because you felt this is a serious matter. You don't need to get all pissy about it.

FYI, I originally posted this in another forum and was asked by a fellow Canadian to post it here as well for the benefit of other Canadians.

in the original thread, I was clear about not being able to afford one.

http://www.visajourney.com/forums/index.ph...t&p=2926794

[Killer_Clown_2009 0]

I think they will give you a lawyer for free if you need one, at least that is what they do here in MA and anywhere else I've ever been. That cop was clearly out of line giving you that ticket. It's quite ridiculous. He should have gave you a break. You didn't even know it was against California law. I've never gotten a ticket for any traffic type thing and have been stopped a number of times and each time admitted I was at fault and apologized. It seems to work for me.

[thetreble 19]

You never stated that you flat out could not afford an attorney. She suggested you get an attorney because you felt this is a serious matter. You don't need to get all pissy about it.

FYI, I originally posted this in another forum and was asked by a fellow Canadian to post it here as well for the benefit of other Canadians.

in the original thread, I was clear about not being able to afford one.

http://www.visajourney.com/forums/index.ph...t&p=2926794

So we were supposed to know that you had posted an original thread, somewhere else on this board, in which you stated you couldn't afford a lawyer and therefore it was wrong to suggest you should get a lawyer?

What kind of advice are you looking for? It appears that no one here has been in your position before or they would have spoken up by now. If you can't afford to hire a lawyer, and legal aid can't help you, then do your best at researching the laws which from your first post you are more than capable of doing. Not to mention Jimva gave you what I thought was a good look into the situation with advice not to advocate your case based upon federal immigration law.

I got a 4 point ticket last year and i paid the court money when i was seen by the prosecutor so that i didn't have 4 points in my license. I ended up paying $400.00 for a $150.00 ticket but it was worth not having that on my file. They will do much the same with you I'm sure. You aren't someone they are looking to bust. Maybe you can pay them more money to get it dismissed, I really don't know how it works.

Again, that is for you to research and thats why I'm not really sure what you are expecting for an answer.

You didn't even know it was against California law.

I hear that at my job every day.."I didn't know I couldn't park there..."

Who ever that line has worked on, god bless.

[bobzurunkel 1]

So we were supposed to know that you had posted an original thread, somewhere else on this board, in which you stated you couldn't afford a lawyer and therefore it was wrong to suggest you should get a lawyer?

Well, I did put right at the top of the post here in the Canadian forum that it was a crosspost. Sure, I could have linked to it, or you could have just as easily clicked on my name and found the other post but would you have read that entire thread too before commenting? Should I be cross posting EVERY message in both threads? No. Also, as a non-resident, I don't believe I would qualify for California legal aid, especially in a traffic related case... Here's the kicker, if I WERE to somehow get legal aid, that in itself would be prima facie evidence of California residency, screwing me entirely.

What kind of advice are you looking for? It appears that no one here has been in your position before or they would have spoken up by now. If you can't afford to hire a lawyer, and legal aid can't help you, then do your best at researching the laws which from your first post you are more than capable of doing. Not to mention Jimva gave you what I thought was a good look into the situation with advice not to advocate your case based upon federal immigration law.

The purpose of the post was first to warn others that may find themselves in the same predicament and to ask if anyone had suggestions on how best to argue the evidence I wished to present, including the US/California residency issue and the DMV license ineligibility issue. The suggestions made by a few users, more so on the other post, about rebutting the presumption of residency and forgetting about the ineligibility issue confirmed what I already suspected.

I got a 4 point ticket last year and i paid the court money when i was seen by the prosecutor so that i didn't have 4 points in my license. I ended up paying $400.00 for a $150.00 ticket but it was worth not having that on my file. They will do much the same with you I'm sure. You aren't someone they are looking to bust. Maybe you can pay them more money to get it dismissed, I really don't know how it works.

Ouch, sorry to hear you had that problem. I'll assume it was a traffic code infraction and not a criminal misdemeanor like mine. For my problem, I'm facing the possibility of maximum 6 months in jail, $1000 fine and court costs if convicted. Certainly something to get "hyped" about.

[thetreble 19]

Ouch, sorry to hear you had that problem. I'll assume it was a traffic code infraction and not a criminal misdemeanor like mine. For my problem, I'm facing the possibility of maximum 6 months in jail, $1000 fine and court costs if convicted. Certainly something to get "hyped" about.

I guess since you reacted poorly to my trying to be blunt, I then tried to be nice. For some people like yourself, they just aren't pleased no matter what kind of response they get.

It's not my job to go to other forms to look at your original post, by the way. Why should someone care THAT much that they have to go through the trouble of trying to find something like that.

Good luck with that criminal record, the jail time or the AOS denial!

Edited May 16, 2009 by thetreble

[JimVaPhuong 4,863]

FFS, people! We're all in this immigration mess together - USC sponsors and immigrants as well. Let's try to help each other.

You can search all of the California codes here:

http://www.leginfo.ca.gov/calaw.html

Read sections 12500 to 12527 of the Vehicle Code. This is what will apply to you.

I think section 12505(3)(e) has you covered. You need to argue that 12505(a)(1) does not apply to you because your presence in the state is, by definition, temporary unless and until you are granted status by the federal government. You're not operating the vehicle commercially (don't get a job delivering pizzas, please!), and California recognizes the validity of a license issued in Canada for use in the state of California. You should argue that the 30 day rule will not apply to you until you've been granted status, and can be considered "permanent". In fact, until the federal government does this, you are not able to comply with the requirement to obtain a California license within 30 days, and should not be left in legal limbo when any other visiting Canadian would be allowed to drive without problems.

It would help immensely if you could demonstrate you still have a valid address in Canada.

[bobzurunkel 1]

Ouch, sorry to hear you had that problem. I'll assume it was a traffic code infraction and not a criminal misdemeanor like mine. For my problem, I'm facing the possibility of maximum 6 months in jail, $1000 fine and court costs if convicted. Certainly something to get "hyped" about.

I guess since you reacted poorly to my trying to be blunt, I then tried to be nice. For some people like yourself, they just aren't pleased no matter what kind of response they get.

It's not my job to go to other forms to look at your original post, by the way. Why should someone care THAT much that they have to go through the trouble of trying to find something like that.

Good luck with that criminal record, the jail time or the AOS denial!

I posted my experience as a WARNING to others and I asked for advice on my particular situation... I've received plenty of helpful advice already, mostly in the original post, and I've already got a good strategy planned out for my defense. I was asked by someone else here on the site to cross post this into the Canada forum as well. Folks like JimVaPhuong are actually contributing relevant and poignant advice to my particular problem here. Then there's folks like you posting messages about your completely irrelevant experiences in New Jersey which are of absolutely no help to me OR to others that may find themselves in the same boat as I am one day, even going so far as to recommend LYING to a cop about where one is living and how long they've been there while in the USA and out-of-status. Nice advice. The kind of advice that will get you deported if they decide to check on it.

Why the hell would you even bother responding to the thread at all if you were not interested in helping me? If you "don't care THAT much", then don't bother posting your glib and flippant remarks. I'm sorry, but YOU are the one being completely ridiculous, and judging by your closing comment, a bit of a ###### too.

FFS, people! We're all in this immigration mess together - USC sponsors and immigrants as well. Let's try to help each other.

You can search all of the California codes here:

http://www.leginfo.ca.gov/calaw.html

Read sections 12500 to 12527 of the Vehicle Code. This is what will apply to you.

I think section 12505(3)(e) has you covered. You need to argue that 12505(a)(1) does not apply to you because your presence in the state is, by definition, temporary unless and until you are granted status by the federal government. You're not operating the vehicle commercially (don't get a job delivering pizzas, please!), and California recognizes the validity of a license issued in Canada for use in the state of California. You should argue that the 30 day rule will not apply to you until you've been granted status, and can be considered "permanent". In fact, until the federal government does this, you are not able to comply with the requirement to obtain a California license within 30 days, and should not be left in legal limbo when any other visiting Canadian would be allowed to drive without problems.

It would help immensely if you could demonstrate you still have a valid address in Canada.

Thanks Jim, this is exactly what I plan to do.

[The_Dude 1,142]

OK, this isn't a precedent case by any stretch of the imagination. I work for a police department in the Los Angeles area and can tell you that this scenario will vary from city to city, and even officer to officer in many cases. I spoke with many officers at work and by and large, most of them said that they would not issue a ticket for what you were issued. That being said, the judge is what really matters in this situation. Technically, you have committed the stated infraction. The judge can either be lenient and take into account that getting a license is not an option to you because you have not received the proper paperwork yet, or he can be a strict jurist and tell you that you shouldn't be driving if you aren't able to obtain the legal documents.

Just be thorough and present your evidence. DO NOT state "I didn't know", this tends to irritate judges and police alike.