Seizing Legal Aliens Foreign Driver’s Licenses for Impaired Driving Convictions

One of the most effective penalties against impaired drivers is the seizure of the driver’s license. Whether through administrative law revocations or upon a finding of conviction, seizure of the license eats at defendants more than court fees, attorney fees, fines, treatment and even jail time. Sit in a courtroom and watch the contorted facial expressions of defendants turning in their licenses. Their faces make that “Hey Vern” guy’s facial antics look like an emotionless Star Trek Vulcan.

But, what about resident aliens? No, not Vulcans, but foreign nationals legally residing in the United States. Can the judge take their foreign license upon conviction? Can he require them to obtain a state driver’s license?

The short answer is yes, but it depends on how the judge does it.

Based on the 1949 Convention on Road Traffic (CRT), TIAS 2487, published in 3 UST 3008, aliens with a foreign driver’s license issued by a country party to the CRT are allowed to drive in the United States. But, according to legal advisors at the Consular Affairs Office at the U.S. Department of State, some conditions apply:

• This treaty does not apply to illegal aliens –only aliens who have been lawfully admitted to the U.S. Illegal aliens do not have the right to drive in the U.S. even if they have a valid license from their country of origin.
  
  
• Aliens may use their foreign driver’s license to lawfully operate a motor vehicle, but only during the first year. This requirement also takes care of any alien who was legally admitted to the country but has violated the conditions of admission by exceeding his authorized period of stay.
  
  
• After one year, aliens must comply with the residence laws of the U.S. state or territory where they reside for continued authorization to drive. In other words after a year, they must surrender their foreign driver’s license and obtain a driver’s license from the state where they live.
  
  
• Nothing in the treaty affects the driver’s responsibility to strictly conform to the laws and regulations relating to residence in each country where the alien travels.

In many states, a conviction for a first offense DUI is a one-year loss of license. Most courts seize the licenses of in-state residents. For out-of-state licenses, there is no uniformity. Some jurisdictions seize them. In other states, the state’s department of motor vehicles (DMV) notifies the issuing state’s DMV. For example, a Tennessee judge will not take a California defendant’s driver’s license, but the court knows that Tennessee’s DMV will notify California’s DMV. Then, it is up to California to pull the offender’s license.

Things get trickier when dealing with foreign governments. How many DMV’s are equipped to provide impaired driving conviction notification to Monaco, Poland or Chile? After all, the U.S. Constitution prohibits state governments from entering agreements or compacts with foreign countries. The treaty does allow states to withdraw the foreign license or international driving permits and mark them as revoked or suspended according to state law. But, there is no real uniformity in how that is done, and the reality of the situation is that once the defendant shows a judge his foreign driver’s license, many courts are afraid to pull it. That still leaves the alien possessing a driver’s license that must be honored in all 50 states.

This is where the judge or prosecutor must use his authority to trump a multilateral international agreement. A prosecutor is always free to enter into a contract (or plea) with the defendant for anything the prosecutor believes is appropriate to the situation. Judges are also free to impose any condition on a sentence they believe appropriate. While a legal alien within his first year of residency may retain a legal ability to drive under the treaty, fairness and public safety beg prosecutors and judges to take the license as part of the sentence.

After conviction, all offenders –alien or native born— face a host of conditions for a basis of their probation: 48 hours in jail, a big fine, court fees, good behavior, no driving, etc…. Turning in a foreign license should be one of them.

Additionally, the foreign license should be pulled if the legal alien has resided in the United States for longer than one year, and the state DMV should be notified of the conviction, which will preclude the alien impaired driver from becoming eligible to apply for a state license for one year.

Some offenders won’t have a foreign driver’s license but an International Driving Permit (IDP) or an Inter-American Driving Permit (IADP) which allows them to drive in the U.S., based on the validity of their foreign license. So, if the court takes a French citizen’s IDP, that person could still drive (again, if within the first year of residency) with his valid French license. Therefore, the court should take both as a condition of plea or sentencing.

Mixing traffic law with international agreements along with requirements of the DMV can be any over-worked prosecutor or judge’s nightmare, but conditions of a plea or sentence are binding upon the defendant. Violation of the conditions means issuance of an arrest warrant and the possibility of spending the remainder of their probation in jail. After all, taking the license is going to have more bite than almost anything else the judge does, but if that does not prevent further driving or impaired driving, a jail cell will.

Currently, there are about 110 countries party to the CRT. Most notably absent from the list is Mexico. The Consular Affairs Office at the U.S. Department of State says that Mexico is covered in another treaty that would also follow similar guidelines. For a list of the countries that participate in the Convention of Road Traffic see the automotive section of the Treaties In Force posted in .pdf format on the State Department’s web site www.state.gov. Another resource on these issues is the American Association of Motor Vehicle Administrator’s Foreign Reciprocity Resource Guide available in .pdf format at www.aamva.org.