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

[Caladan 19]

1) You need to find out what is a likely fine and sentence; suggested maximums are almost never given for first time offenders. That might ease your mind.

2) AOS paperwork specifically excludes traffic-related offenses from their consideration; I am not an attorney, but I would be very, very surprised if this caused any immigration headaches for you.

3) Catholic Charities often have legal clinics attached, and they often have experience with law enforcement and immigration. This could very well be something that a judge will toss out, or there might be a way to plea it down to something on the infraction level. But they are free-to-sliding scale, and you don't have to be Catholic or anything.

4) If you have an address in Canada, proof of insurance to drive in the U.S., etc., bring those along. They might not help with the technical question of whether you violated CA law (a quick look at the code seems to indicate it all depends on whether you count as a CA resident), but it will show good faith.

[bobzurunkel 1]

UPDATE:

Well, went to court today for the arraignment... and yes, it was an actual judge/courtroom in los angeles superior court... Waited in court for 3.5 hours, judge took a recess and the prosecutor called me up to talk to him about the case. He asked if I was able to get my license yet since the citation, I told him nope as the DMV wouldn't process the application as I had no legal presence document. He said ok, bundled my two charges together and offered to knock the misdemeanor 12500a down to an infraction and pay $1000 fine for both charges if I plead guilty to failing to yield to the pedestrian at a crosswalk (infraction) and driving w/o a CA license (infraction).

I explained to him that I was hoping to have the 12500a charge dismissed entirely and told him that I'm in the country visiting on a non-immigrant K1 fiance visa and I'm not a California or a US resident. He said the K1 visa, the subsequent marriage to a California citizen and staying at her house demonstrates enough intent to him to successfully try me and that if I didn't accept his offer, he would push for the maximum sentence if he were to win at trial later. Maximum is 6 months in jail and/or $1000 fine. I doubt the judge would ever give me that sentence, but I didn't feel like pressing my luck, as well, the trial by declaration option does NOT exist for a misdemeanor charge.

I felt he was railroading me a bit and I quickly argued that he was wrong, that the K1 visa is a NON-immigrant visa and only grants me the right solely to enter the US and to marry my fiancee and does not grant me privilege to stay here; that my stay here can only be extended via an I-485 AOS adjustment that came 5 days AFTER the citation; that my true, fixed and permanent home was in Canada. I also showed him the what the DMV rules were for determining residency, as well as the 12505 rules, and as mentioned here in the forum by a few users, the prosecutor said the law is written vaguely enough for him to prove the intent for his case.

He told me the I-485 application itself, even if I filed 5 days after the citation, proves intent, even if I'm seeking US residency, not necessarily California residency. He again reminded me that if I choose to fight it, he'd seek the maximum penalty... I looked at my wife, she nodded, and I said I'd take the deal, he smiled and I sat down again.

The judge soon returned from recess, called me up in front of him, read the charges, I plead guilty and I asked for six months to pay the $1000, which was granted as well as traffic school for the 21950a failing to yield charge.

I'm happy that I won't have a criminal record now for this, which was my ultimate concern here, but I still find it quite ridiculous to get a $1000 fine for being a CA resident w/o a CA license when the CA DMV will not issue me a license in the first place because I'm not a US resident. Even more ridiculous was the 3 hour parade of people called before me getting off with significantly lighter fines for convictions such as domestic abuse, disobeying restraining orders, marijuana possession, failing to appear, etc.

To top it all off, we arrived back home to find an RFE in the mailbox from USCIS for my wife not having her 2007 and 2008 taxes done to include with her I-864. Yay.

I guess the moral of the story is this:

Until you have your California license in hand, (which you won't really be able to get until you at least get your EAD or your I-485 797C approval NOA) don't tell the cop you've been in the state for more than 10 days, and don't tell him you're living with your new spouse in the USA. in other words, as recommended by others here, lie your #### off!

God Bless America, but what a friggin' joke.

Anyhow, thanks everyone for your support and advice here, it was greatly appreciated.

[The_Dude 1,142]

If he really thought he could win his case, he wouldn't have offered you that deal.

I don't think your case here is a precedent for all of california. That is just how Burbank deals with it.....

[bobzurunkel 1]

If he really thought he could win his case, he wouldn't have offered you that deal.

I don't think your case here is a precedent for all of California. That is just how Burbank deals with it.....

I'd be inclined to believe you, that he was bluffing, however I was one of perhaps three or four other people also charged with 12500a CVC there which were being offered a plea bargain for a reduced charge just to clear the court.

What's most likely is that the onus is on him to dig up the evidence and prove that we're all California residents so he makes these deals to make things easier on himself or his staff.

I have to say, I immediately regretted giving in on this when I sat down, I know I'm right about the residency thing, but I did not want to risk losing at all since I couldn't do the trial by declaration.

Yes, it's no California precedent, but the original warning to foreign newlywed drivers I posted still applies. Most other states probably have similar residency rules and license requirements. It makes sense to double check your eligibility to drive, or you may end up like me.

[Krikit 1,165]

Glad it worked out for you, Agamoto. Given the circumstances, you made the best decision. $1,000 is a bargain compared to what you'd have paid for legal counsel. Arguments based on theory as opposed to legality never win in court. You did the right thing.