Offense
Hit and run (felony)
Aggravated Felony (AF)
Try to get 364 days or less to avoid possible AF charge as obstruction of justice, although immigration advocates will contest that. See Advice
Crime Involving Moral Turpitude (CIMT)
Dangerous as a CIMT. See Advice.
Assume 20001 enhancement under 20001(c) is CIMT.
Other Removal Grounds
No other removal ground.
Advice and Comments
AF as Obstruction. Obstruction of justice is an AF if a year or more sentence is imposed. INA 101(a)(43)(S).
Defenders should act conservatively and try to avoid a sentence of a year on any single count, in case ICE charges this as obstruction of justice under Pugin v. Garland, 22-23, 2023 WL 4110232 (June 22, 2023). See discussion of obstruction and Pugin at PC 32 Advice. It appears that hit and run, which does not include any intent to avoid a legal process, should not be held obstruction — but given the vague definition set out in Pugin ICE charge it.
If a year or more is needed consider a plea to felony vandalism, which could be coupled with reckless driving. If lot of time is required, VC 20001 can be the subordinate felony with a sentence of 8 months. See other ways to structure sentences for immigration purposes at § N.4 Sentence
CIMT. See endnote for citations and further discussion.1See Cerezo v. Mukasey, 512 F.3d 1163 (9th Cir. 2008) (finding that VC § 20001(a) is not categorically a crime involving moral turpitude because it could include acts without evil intent, e.g., stopping and providing contact and insurance information but failing to provide vehicle registration number). The statute is divisible because a jury must unanimously decide which duty defendant failed to perform. CALCRIM 2140, 2141, 2150, 2151.
Is a guilty plea stating that D failed to provide registration information, with no statement regarding whether they also failed to stop, sufficient to prevent a finding that the conviction is a CIMT? It may not be where the person is applying for relief – for example, if D is an undocumented person or a deportable LPR who must apply for cancellation, a family visa, or other relief. In Pereida v. Wilkinson, 141 S.Ct. 754 (2021), the Supreme Court held that an applicant for relief has the burden to prove that a conviction under a divisible statute is not a bar to relief. This may be interpreted to mean that silence on the failure to stop issue will be insufficient to prove the person was not convicted of that. For that reason, the safe plea for an undocumented person is to state specifically that they did stop. When the issue is deportability, the burden of proof shifts: ICE has the burden to prove that a conviction under a divisible statute is a deportable offense. Thus, if an LPR is charged with being deportable based on a CIMT conviction, and the record of conviction is silent as to whether they stopped, ICE would not be able to meet its burden to prove that the hit and run was a CIMT. However, in Pereida the Court suggested that evidence from outside the record of conviction can be considered in this inquiry, and that Shepard does not apply in removal proceedings. This may mean that ICE could produce other records to try to prove that the LPR did not stop. The really safe course would be a specific plea to having stopped but having failed to provide registration information. In many cases, this will not be possible.
In the alternative, consider pleading to offenses other than hit and run that are not CIMTs but that fit the facts, e.g., lower-level reckless driving plus vandalism.
To avoid a CIMT, assume it is necessary to plead to “failure to provide registration information” and further to state affirmatively that the person did not fail to stop (i.e., state that they did stop). Assume that this is necessary for any person who must apply for relief, and highly advisable for an LPR who is defending against a charge of being deportable, who needs to avoid a CIMT.
To avoid a CIMT, consider VC 23103 misd or PC 594,or a combination.