bobzurunkel

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.