As more and more jurisdictions in the United States decriminalize or fully legalize medicinal and recreational marijuana, lawmakers worry about the behavior of people under its influence. One response has been states passing “metabolite” laws. These criminalize engaging in certain activities if there is evidence that you have metabolized marijuana in your system. Your body’s internal chemistry causes compounds in marijuana (and other substances) to break down into new compounds. This process is known as “metabolism.” It is those broken-down, “new” compounds that are the “metabolites” in question.
Utah law, for example, states someone “may not operate or be in actual physical control of a motor vehicle within this state if the person has any measurable controlled substance or metabolite of a controlled substance in the person’s body.” (See Utah Code § 41-6a-517(2).) This is a very broad law in two ways. This law does not include any requirement that the person be “intoxicated,” “impaired,” “under the influence,” or something similar. Simply having a metabolite of marijuana in one's system when driving is enough for a conviction. And unlike traditional DUI laws that set a blood-alcohol level (0.08 for example), there is no minimum level of “metabolites” that must be present in one's system to be convicted of a metabolite DUI. In other words, even if you are perfectly fit to drive and even if you only have a tiny level of metabolites in your system, you can still violate this Utah law.
Utah is not alone in criminalizing nonimpaired driving with any measurable metabolite; Arizona, Delaware, Iowa, Indiana, Illinois, Michigan, Pennsylvania, Rhode Island have similar laws (as of late 2017), and other states may interpret their existing DUI laws to cover metabolite DUIs. Such convictions might carry small consequences in criminal law contexts, but for immigration law, the consequences can be dire.
A metabolite conviction could be a problem if you are applying for a visa or for a green card. When reviewing your application, immigration officials will check your background to see whether anything disqualifies you. These are known as “grounds of inadmissibility.”
One such ground is for the violation of "any law or regulation … relating to a controlled substance.” (See 8 U.S.C. § 1182(a)(2)(A)(II).) This language is sufficiently broad that immigration officials could interpret the words “relating to” to include a metabolite conviction. With one exception discussed below, convictions relating to a controlled substance are fatal to most visa and green card applications. Congress created inflexible rules for conduct “relating to” any controlled substance.
Even if you have a green card, you might still have troubles ahead. After holding a green card for three to five years, you may consider applying for citizenship. To become a U.S. citizen you must prove, among other things, that you are a person of “good moral character.”
Under current policy from U.S. Citizenship and Immigration Services (USCIS), someone cannot establish good moral character who "has been convicted of or admits to having violated any controlled substance-related federal or state law or regulation" during the prior three to five years.
The word “related” appears in this policy, similar to the law above. So, a zealous immigration official may conclude that a metabolite DUI is “related” to a controlled substance violation and thus bars citizenship.
One up side is that the policy discusses conduct only within the three-to-five-year period before applying for citizenship. A winning strategy may, therefore, be to wait for the period to pass before applying for citizenship. But on the down side, immigration laws allow USCIS officials to conclude that an applicant does not have good moral character for virtually any reason, even for conduct outside of the three-to-five-year period. (See 8 U.S.C. § 1101(f), the so-called “residual clause.”)
There is one controlled-substance exception written into immigration laws in this area. Possession of a small amount of marijuana can be forgiven, both as a ground of inadmissibility and for establishing good moral character.
The inadmissibility exception is narrow, forgiving only “a single offense of simple possession of 30 grams or less of marijuana.” (See 8 U.S.C. § 1182(h).) You must also show either 1) that 15 years have passed since your conviction and that you have been “rehabilitated” or 2) that your spouse, parent, or child is a U.S. citizen or permanent resident and would suffer “extreme hardship” without you. In other words, the inadmissibility exception is not automatic.
The good moral character exception is also narrow, covering a single offense of simple possession of 30 grams or less of marijuana. For the good moral character exception, you do not need to wait 15 years or show hardship as for the ground of inadmissibility. In other words, the good moral character exception is automatic.
The key language, either in terms of inadmissibility or good moral character, is the term “simple possession.” A metabolite DUI is, arguably, different than possession. Instead, it is driving with a metabolite in your system. But from an immigration point of view, it is a problem. Neither immigration officials nor published court decisions have explicitly addressed this issue. The risk is high that immigration officials will conclude that a metabolite DUI is “more” than simple possession and refuse to apply either exception.
Since common sense cannot be a guide on this point, immigration law may paradoxically counsel defendants toward accepting a conviction for simple possession. If you can plead guilty to a charge of simple possession of 30 grams or less of marijuana, this may be the best option.
The reason is that a conviction for simple possession much more clearly falls into the exceptions noted above. But you must be very careful before pleading guilty to any crime. The language of the criminal statute, any police or lab reports, your immigration status, and your prior criminal history can all affect whether an exception will help you. Consulting an immigration attorney is absolutely necessary before pleading guilty.
Under U.S. law, if you have been permitted to enter the United States, you can be kicked out only if you are “deportable.” The list of things that make someone “deportable” after entry are similar to the list of things that make you “inadmissible” before entry or approval for status (but the lists are not identical).
One ground of deportability includes any conviction “relating to a controlled substance … other than a single offense involving possession for one’s own use of 30 grams or less of marijuana.” (See 8 U.S.C. § 1227(a)(2)(B)(i).)
This sounds similar to the provisions above for “inadmissibility” and “good moral character,” but there is an important procedural difference. If you want to get a green card or enter the U.S., or if you want to become a U.S. citizen, it is your job to prove that you are eligible. If there is a question of eligibility, you are likely to lose. In other words, the burden is on you.
But to remove you from the U.S. (to “deport” you), immigration officials must prove that you are deportable. In other words, the burden is on immigration officials. Still, you should be careful; immigration officials may ultimately succeed in proving you are deportable under this section of law. There are no published court cases that give a clear answer, but the legal arguments are comparatively straightforward.
The best strategy, of course, is to avoid all criminal convictions, including controlled substance violations. Remember, even if marijuana is legal or decriminalized under some state laws, it remains illegal under federal law. Immigration laws punish controlled substance violations harshly.
If you do use marijuana, and you are charged with a metabolite DUI, you should consult with an immigration attorney. If you have the chance, consider pleading to a single conviction of simple possession of 30 grams or less of marijuana. If you do not have the chance, be aware of the possible future consequences of the conviction.