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

[bobzurunkel 1]

Hi VJ'ers!

Mini timeline:

Entered US on 1-10-2009

Married 3-24-2009

SSN received 3-10-2009

I-94 Expired 4-09-2009

AOS filed 4-24-2009

The Short Version:

Illegal under California Law: Marrying an American, filing I-485 adjustment of status, staying at your US citizen spouse's California residence while awaiting approval/denial of AOS and driving using a Canadian license while there since you cannot obtain a CA license.

Legal under California Law: Marrying an American, filing I-485 adjustment of status, driving back and forth between Las Vegas, NV and your spouse's California residence every 10 days or less awaiting approval/denial of AOS using a Canadian license since you cannot obtain a CA license.

The Long Version:

On 4-25-2009, while driving my wife's car, I was pulled over by the Burbank, CA PD for failing to yield to a pedestrian at a crosswalk.

I presented the officer with my Canadian license, valid until 2013. He then asked me where I was living and I gave him my address in Burbank. He followed by asking me how long I've been here in California and I told him since 1-10-2009. He then issued me a ticket for violating 12500(a) of the California Vehicle Code, driving without a valid CA driver license. He told me that if I'm living here in CA, I'm considered a CA resident and must get myself a CA license within 10 days of arrival. The charge is a criminal misdemeanor, mandatory court appearance and will be on my permanent record if I am convicted.

I then argued with the officer regarding my residency status, I had just filed the AOS the day prior and I told him that I'm technically a non-resident "gray-area" alien since the AOS was just filed and my I-94 had already expired. I explained to him that I am still a Canadian resident, I have a bank account, health bills, credit cards, a company of my own up there... I explained to him that I have no intention, and more importantly no legal right, to stay anywhere in the USA unless my I-485 application is approved for US residency.

I further explained to him I had read on the California DMV site that I didn't require a California license until my California residency had been established... That I couldn't even attempt to get one until I had residency confirmed with the proper DHS document and a valid SSN. My interpretation of what it says in the CA Driver's Handbook was that until such time as CA residency is established, I'd be able to drive with my valid Canadian drivers license. The cop told me that he wasn't going to argue about it with me and to take it up with the judge and that I should feel lucky he didn't impound the vehicle for 30-days, as is his right to do under the law with 12500(a) CVC. I took the ticket, thanked him and told him to have a nice day (It was the first time I had lied to him as I secretly wished for him to die in a fire as soon as possible).

After looking up the relevant sections of the law here back at the love shack, my residency status certainly seems to be the crux of the matter. Section 12500 CVC refers to section 12502 CVC as I'm a non-resident driver and 12505 CVC defines what a California resident is, specifically with regard to driver licensing. Basically, it says that if you so much as have the INTENT alone to remain in California with any sort of permanency, if your stay in California is anything other than "temporary or transient", you ARE a California resident and must have a license to drive 10 days post arrival to the state.

A few days later I received my I-797C NOA1 for my AOS/AP/EAD submission. I had read on the DMV site that they accept I-797 NOA's as proof of legal status and that the 12500a CVC charge is usually dismissed for first time offenders if you come to traffic court and produce a newly received valid CA license. Excited that I might have an easy out here, I made an appointment with the DMV for May 7th. The supervisor at the DMV called Sacramento headquarters to confirm, and he then told me they only accept the I-797 APPROVED I-485 NOA. They would not even allow me to file the DL44 new application form. He also said it would not have been possible to receive a license prior to that because my I-94 expired less than 30 days after receiving my SSN and that any license they would have issued to me would have only been valid to the expiry date of the I-94. I showed the DMV supervisor what it said in their handbook with regards to driving with a foreign license while a visitor in California and asked if my case applied. He was reluctant to make any call on that and told me to call the Burbank PD again and confirm with them as they're the ones that do the enforcing.

So, I called the Burbank PD explaining all this again and to ask whether or not I could drive with my Canadian license or not while this was all pending, and/or before/after any conviction/dismissal. I was told by another traffic officer on the phone that as far as they're concerned, if I'm living here in CA then I'm a California resident, "case closed." He said it doesn't matter what the DMV said or even wrote in their handbook. He then added that he "found it pretty funny" that I'm claiming innocence on 12500a CVC due to non-residency on one hand while I'm living here with my wife and applying for US residency on the other. Grrrrrrrrrrrrrrr... I wanted to scream. Anyway, the cop said even if the charge was dismissed I'd get cited again with 12500(a) CVC as that's any Burbank road cops interpretation.

My interpretation of all this is markedly different:

Obviously US residency and California residency are two separate animals, but really, c'mon... How can one be considered a lawful legal resident of a state when they are considered a non-resident alien by the union? That's retarded.

Marrying a US citizen and staying with her while applying for US residency should NOT automagically mean i've become a California resident. The law here is pretty loosey goosey as to what establishes California residency, but I consider my stay here in California is of a "temporary or transient nature" because I'm not working here in California, I do not own property here or pay rent on a lease, property taxes, or anything else listed in the DMV handbook or section 12505 defining residency (Which is intentionally, and wickedly broad in its definitions). More importantly, I continue to maintain my Canadian residency and I have the intent to return to Canada if my I-485 application is denied for any reason. I have no choice in the matter actually, just as I have no choice but to be forced to stay in the USA while my I-485 is being processed, or at least until I receive advance parole.

Nice, what a frustrating system.

Trying to explain all of this to a cop, it's in one ear out the other and a complete waste of time. 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 already realize that I can get my license once I can present my EAD.

Here's the relevant laws and info in case anyone's interested in reading the details and wants to come to their own interpretation:

California Vehicle Code:

12500 - Unlawful to Drive Unless Licensed

12502 - Non Resident Drivers

12505 - Establishing Residency

What the California DMV Website/Driver's Handbook specifically has to say regarding residency and visiting drivers:

New Residents

When you become a resident and you want to drive in California, you must apply for a California driver license within 10 days.

Residency is established by: voting in California elections; paying resident tuition at a California college or university; filing for a home owner’s property tax exemption; obtaining a license; or receiving any other privilege or benefit not ordinarily extended to nonresidents.

Adults Visiting California

Visitors over 18 years old with a valid driver license from their home state or country may drive in California without getting a driver license as long as their home state license remains valid.

[kaffy 2]

Gosh that's ridiculous! I hope you get it resolved in court

[elmcitymaven 9,711]

That sucks, agamoto. Nothing really to add, but my sympathies. I live in Burbank and the PD are well-known for being sticklers for even the tiniest traffic infractions. We drive paranoid.

Hope this gets sorted out soon.

[Kar98 0]

I presented the officer with my Canadian license, valid until 2013. He then asked me where I was living and I gave him my address in Burbank.

Wrong answer. Should have given him your address in Canadaville, Canada.

[bobzurunkel 1]

I presented the officer with my Canadian license, valid until 2013. He then asked me where I was living and I gave him my address in Burbank.

Wrong answer. Should have given him your address in Canadaville, Canada.

That would be lying though.

That sucks, agamoto. Nothing really to add, but my sympathies. I live in Burbank and the PD are well-known for being sticklers for even the tiniest traffic infractions. We drive paranoid.

Hope this gets sorted out soon.

Hey fellow, ummm... non resident resident?

It will get sorted out once I talk to the judge, and not completely lose my cool, I hope.

Gosh that's ridiculous! I hope you get it resolved in court

Yeah, I'm dreading it actually, kind of hope I can get some advice on what to do here.

[Kar98 0]

I presented the officer with my Canadian license, valid until 2013. He then asked me where I was living and I gave him my address in Burbank.

Wrong answer. Should have given him your address in Canadaville, Canada.

That would be lying though.

Not if you're saying "I'm from Canada, and my address there is 1234 N Canada Drive, Canadaville, Canada."

[Kathryn41 3,205]

Be sure to print out information from USCIS showing what they consider your status and when it changes, as well as the processing times to show that it is literally months before you get AOS approval. Good luck. Hopefully the judge will see you are between a rock and a hard place.

Edited May 13, 2009 by Kathryn41

[Jose Rizal 1]

I presented the officer with my Canadian license, valid until 2013. He then asked me where I was living and I gave him my address in Burbank.

Wrong answer. Should have given him your address in Canadaville, Canada.

That would be lying though.

Not if you're saying "I'm from Canada, and my address there is 1234 N Canada Drive, Canadaville, Canada."

You can contrest it in court.

[I AM NOT THAT GUY 5,715]

The easy answer is not to drive alone until you get your California Drivers License. You can still apply for a Learners Permit. That does not require proof of residency, and would show that you are at least aware of California's road rules.

[Aubrey 10]

Hi VJ'ers!

Mini timeline:

Entered US on 1-10-2009

Married 3-24-2009

SSN received 3-10-2009

I-94 Expired 4-09-2009

AOS filed 4-24-2009

The Short Version:

Illegal under California Law: Marrying an American, filing I-485 adjustment of status, staying at your US citizen spouse's California residence while awaiting approval/denial of AOS and driving using a Canadian license while there since you cannot obtain a CA license.

Best come overprepared with documentation. I'd bring evidence about having 90 days to get married, the date of your marriage, the date of your AOS filing, and extensive evidence of how it was completely impossible for you to get a CA DL.

Really sorry you're going through this. Good luck.

[Creel 0]

The same thing happened to my husband. He actually called me on his cell phone while the cop was giving him the ticket and I talked with the cop and explained the situation. He said if you are here for more than 10 days you need a CA license, but was nice enough not to tow the car and let my husband walk home and I got the car later.

We went to court to argue the ticket and the cop never showed up so it was dropped. I think he did a little research and found out that he was wrong and so is your cop. The law clearly states that when you make CA your permenant residence you need the license. You can visit as long as you want as long as you have not made CA your residence. The argument you make is that you are living here, but it is NOT your permenant residence. How can it be, would you give up residence in your own country before you can legally make this your residence?

The whole idea behind the law is to make money for the State and also make a little money from the illigals. If you aren't here legally you can't get a license, so you just pay the fee. I won't guarentee that you will get off, but if you make a logical arguement that this is not your permenant residence you should get out of it.

[The_Dude 1,142]

Technically, both sides are right. The standard in which police departments use to determine residency is flawed, and this is one of those cases that exposes it. I work for a police department in southern cali and would strongly suggest getting your case moved to either the West. L.A. traffic court, or Pasadena. They both have very pro-plaintiff judges

[Saddle Bronc 124]

You shoulda PM'ed me agamoto; I have actual experience in using Canadian licence in US way past state "deadlines", and getting off tickets on that.

[lucyrich 19]

This is something that has come up several times before. I've posted a similar warning.

The problem is that the definition of "resident" for the purposes of the CVC has absolutely nothing to do with immigration status. Most illegal immigrants who live in CA are considered "residents" for the purpose of the CVC, which is what allows police to arrest them for not having a license.

The definition of "resident" in CVC 12505 is pretty darn vague, though.

12505. (a) (1) For purposes of this division only and notwithstanding Section 516, residency shall be determined as a person’s state of domicile. "State of domicile" means the state where a person has his or her true, fixed, and permanent home and principal residence and to which he or she has manifested the intention of returning whenever he or she is absent.

Prima facie evidence of residency for driver’s licensing purposes includes, but is not limited to, the following:

(A) Address where registered to vote.

(B) Payment of resident tuition at a public institution of higher education.

© Filing a homeowner’s property tax exemption.

(D) Other acts, occurrences, or events that indicate presence in the state is more than temporary or transient.

If I were you, I'd be looking for a lawyer, and/or going to a law library to search the case law to figure out what arguments you can make that maybe you're not a resident per CVC 12505.

I would NOT make the argument that "Your honor, I didn't get a license because the USCIS hadn't approved my paperwork so my immigration status wouldn't allow me to get a license". Or at least I'd only make it as a last resort. Whether or not you're eligible for a license isn't the judge's problem. The judge only has to decide whether or not the law required you to obtain a license in order to drive in CA. If you were required to get a license and didn't get one, regardless of the very good reason for not getting one, you were in violation of the law when you drove. Legally, it's the equivalent of someone saying, "I didn't get a license because I kept failing the road test".

[bobzurunkel 1]

You shoulda PM'ed me agamoto; I have actual experience in using Canadian licence in US way past state "deadlines", and getting off tickets on that.

Holy #######, do tell!!

The same thing happened to my husband. He actually called me on his cell phone while the cop was giving him the ticket and I talked with the cop and explained the situation. He said if you are here for more than 10 days you need a CA license, but was nice enough not to tow the car and let my husband walk home and I got the car later.

We went to court to argue the ticket and the cop never showed up so it was dropped. I think he did a little research and found out that he was wrong and so is your cop. The law clearly states that when you make CA your permenant residence you need the license. You can visit as long as you want as long as you have not made CA your residence. The argument you make is that you are living here, but it is NOT your permenant residence. How can it be, would you give up residence in your own country before you can legally make this your residence?

The whole idea behind the law is to make money for the State and also make a little money from the illigals. If you aren't here legally you can't get a license, so you just pay the fee. I won't guarentee that you will get off, but if you make a logical arguement that this is not your permenant residence you should get out of it.

I'm pretty sure this is the only defence I have, that I am still a Canadian resident and citizen, and that I am not forsaking that in lieu of Calfornia residency until the I-485 is approved.

Technically, both sides are right. The standard in which police departments use to determine residency is flawed, and this is one of those cases that exposes it. I work for a police department in southern cali and would strongly suggest getting your case moved to either the West. L.A. traffic court, or Pasadena. They both have very pro-plaintiff judges

Wow, you can do that?