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DA not considering immigration status in plea deals, says public defender

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Deputy Public Defender Francisco Ugarte, left, and client, Beto Martinez, had sought a plea deal in Martinez’s DUI case but were denied and now Martinez faces deportation. (Photo Illustration by Jessica Christian/S.F. Examiner)

When Deputy Public Defender Kathleen Natividad’s client, who has lived in the U.S. for 20 years after arriving here from Guatemala, was arrested for a DUI in 2015 by San Francisco police, the case had the potential to get him deported.

That’s because immigration law says that a DUI conviction can impact one’s status, according to Public Defender’s Office lawyers. With that in mind, the Richmond carpenter and father of three — who is undocumented — and his lawyer came up with a compromise: he would plea to a wet-reckless charge and agree to the same fines and punishment as a DUI.

But the prosecutor would not agree, and now the case is heading to trial, which could end in a conviction and possibly deportation because such an outcome would make him an enforcement priority for Immigration and Customs Enforcement.

That’s because immigration law looks at DUIs as a more serious conviction than a wet-reckless conviction.

Last year, a state law took effect that instructs prosecutors to consider the impacts of plea bargains on immigration status. While there have been individual cases where such impacts have been considered, it’s not being done systematically in San Francisco, according to lawyers in the Public Defender’s Office.

In other words, the case of Natividad’s client is more common than not, defense attorneys say.

“The concern is that immigrant clients are suffering a lot of unintended consequences that were not contemplated by the Legislature with first-time DUIs,” said Carmen Aguirre, managing attorney for the misdemeanor unit in the Public Defender’s Office.

She said as much in a letter to District Attorney George Gascon last year. The letter, which did not receive a response, said her clients could be charged with wet-reckless instead of DUIs and they would still face punishment for their action and be eligible for immigration relief. “The difference between a wet and reckless and a DUI is not such a great one,” she wrote.

District Attorney’s Office spokesperson Max Szabo denied that allegation, and said immigration status has always been considered by prosecutors, noting that the office had mandatory training on immigration consequences in May 2016.

“Immigration consequences are a factor we consider, and where appropriate we tailor plea agreements to avoid such consequences,” Szabo said. “The standard of accountability we hold offenders to needs to have some element of equity across citizens and noncitizens alike, however. Discounting all DUIs for undocumented immigrants to a wet-reckless, for example, would result in San Francisco’s immigrant population having fewer consequences for drunk driving.”

Szabo continued, “While we continue to meet our obligations under the law, the Public Defender’s Office routinely fails to meet theirs. The law requires, and their client’s deserve, that they ‘provide accurate and affirmative advice of the potential immigration consequences’ of a plea agreement. They habitually fail to meet this obligation, often preferring to provide generic information about immigration consequences that are not tailored to the specific circumstances their client faces.”

Szabo also said that the cases in question have particular reasons for being denied wet-reckless charges. In Natividad’s client’s case, the man’s blood alcohol index was so high he represented a public safety hazard. And, Szabo added, he was charged with a hit-and-run as well.

However, Natividad said the incident amounted to a minor fender bender, if that.

Szabo also noted that in many cases, DUIs are not grounds for automatic deportation.

But Deputy Public Defender Francisco Ugarte said that while DUIs don’t always trigger deportation, they can impact status in a variety of cases. Those include Dreamers who can lose their eligibility for the program for people brought into the country illegally as young children, and it can impact naturalization for permanent residents.

Aguirre said there are numerous instances in which these cases have occurred over the past year.

Will Helvestine, a deputy public defender, had a client charged with a DUI, and had been granted a work permit because of his Dreamer eligibility. But in June 2016 the prosecutor would not agree to a wet-reckless plea, so they went to trial and he was convicted of a DUI.

“I told the ADA that because of [the] work permit … we would agree to the wet and reckless to any terms they wanted to propose,” said Helvestine.

The father of two U.S. citizen children subsequently lost his Dreamer eligibility and hence, his job.

Another Public Defender’s Office client, Beto Martinez, was arrested and detained by ICE at his Bernal Heights home after being convicted of a DUI in 2015. He too tried to plea to a wet-reckless, but was denied. He still faces deportation proceedings.


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