Leocal: Why a DUI Crash Is Not Automatically a Crime of Violence

If you are not a citizen and have been convicted of driving under the influence and hurting someone, you may be told that you committed a “crime of violence,” which can be an aggravated felony. Under a DUI statute that requires no mental state as to the use of force, or only negligence, that label is wrong. A serious injury does not change the answer, because the question is what the offense requires. The conviction can still cause other serious immigration problems, as explained below.

The Supreme Court decided this in Leocal v. Ashcroft, 543 U.S. 1 (2004), No. 03-583, decided November 9, 2004. A lawful permanent resident asked the Court to hold that his Florida conviction for DUI causing serious bodily injury was not a crime of violence. The Court agreed, unanimously, in an opinion by Chief Justice Rehnquist. It reversed the Eleventh Circuit and sent the case back for further proceedings.

A green card, a crash and a removal

Josue Leocal, a citizen of Haiti, came to the United States in 1980 and became a lawful permanent resident in 1987. In January 2000 he was charged with two counts of DUI causing serious bodily injury under Florida law after he caused an accident that injured two people. He pleaded guilty to both counts and was sentenced to two and a half years in prison.

While he was serving that sentence, the government began removal proceedings. A noncitizen convicted of an aggravated felony is deportable, and the immigration statute defines that term to include a “crime of violence” under 18 U.S.C. § 16 with a prison term of at least one year. An immigration judge found him removable in 2001, relying on an Eleventh Circuit decision that treated this Florida statute as a crime of violence. Before the Board of Immigration Appeals decided his appeal, it had changed its own view and held that DUI offenses without at least recklessness are not crimes of violence. But the Board followed circuit law where a circuit had ruled, so it affirmed. Leocal finished his sentence and was removed to Haiti in November 2002. In June 2003 the Eleventh Circuit dismissed his petition for review.

The law looks at the offense, not the crash

The Court began with the word “offense.” Section 16 applies to “an offense that has as an element” the use of force and to a felony that “by its nature” involves a substantial risk that force will be used. That language, the Court said, requires looking “to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.” What Leocal actually did on the road did not decide the case.

The Florida statute required proof that the driver caused the injury but not proof of any particular mental state. Many states have similar laws. The Court listed California’s statute, Vehicle Code section 23153, among those appearing to require only negligence. Before Leocal, the Ninth Circuit had already held in United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001), that section 23153 was not a crime of violence because it could be violated through negligence.

Using force means more than causing harm

The parties fought over the word “use.” The Court said that focus was “too narrow.” The key words are “use . . . of physical force against the person or property of another.” To use force is to actively employ it, and the Court said “it is much less natural to say that a person actively employs physical force against another person by accident.” You use force against someone by pushing him. You would not ordinarily be said to use force against someone by stumbling and falling into him. That phrase, the Court held, “most naturally suggests a higher degree of intent than negligent or merely accidental conduct.”

Section 16(b), the broader part of the definition, did not help the government. It reached offenses that involve a substantial risk that force will be used, but the risk has to be of using force, not of causing an accident. The Court’s “classic example” was burglary, because a burglar may have to use force against someone while committing the crime. A drunk driver does not risk having to use force against anyone in order to drive drunk. The Court added that drunk driving is a serious national problem, but “this fact does not warrant our shoehorning it into statutory sections where it does not fit.”

What Congress wrote elsewhere

Another part of the immigration statute confirmed the reading. Section 101(h) defines “serious criminal offense” to include, separately, a crime of violence under section 16 and reckless driving or DUI involving personal injury. If DUI with injury were already a crime of violence, the separate listing would be nearly pointless. Nine months after enacting that provision, Congress added crimes of violence to the aggravated-felony definition without adding the DUI language.

A footnote gave a further reason. Section 16 is a criminal statute that also applies outside criminal cases. It must be read the same way in both settings, so if it were unclear, the “rule of lenity” would require reading it in Leocal’s favor. Lenity means that ambiguity in a criminal law is resolved for the defendant.

What happened to the questions Leocal left open

The Court expressly did not decide whether an offense requiring recklessness qualifies. Two later developments largely answered that. Sitting en banc in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006), the Ninth Circuit held that neither recklessness nor gross negligence is enough under section 16, and that an Arizona assault offense that could be committed recklessly was not categorically a crime of domestic violence under the same definition. In Borden v. United States, 593 U.S. 420 (2021), five Justices agreed in the judgment that an offense requiring only recklessness is not a “violent felony” under the similarly worded elements clause of the Armed Career Criminal Act. Four of them relied on the phrase “against” another person, and they drew on Leocal. Borden is a sentencing case, so it does not itself decide the immigration definition. The Ninth Circuit has since said, in Gutierrez v. Garland, 106 F.4th 866 (9th Cir. 2024), that section 16(a) requires a purposeful or knowing mental state. But in United States v. Begay, 33 F.4th 1081 (9th Cir. 2022) (en banc), it held that second-degree murder, which can rest on recklessness with extreme disregard for human life, is a crime of violence under the similar clause in 18 U.S.C. § 924(c). A charge at that level needs separate analysis.

Section 16(b) is gone as well. In Sessions v. Dimaya, 584 U.S. 148 (2018), the Court held that clause unconstitutionally vague. We discuss that decision in our Dimaya analysis. For immigration purposes, the fight is now over section 16(a), which is where Leocal’s reasoning matters most.

A DUI can still hurt your immigration case

Leocal answers one question. Other parts of immigration law can still apply.

An aggravated DUI can be a crime involving moral turpitude. In Marmolejo-Campos v. Holder, 558 F.3d 903 (9th Cir. 2009) (en banc), the court noted that the Board has never held a simple DUI to be such a crime, but upheld the Board’s view that DUI committed with knowledge that one’s license is suspended or otherwise restricted is one. That decision relied on deference to the Board. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), overruled that kind of deference, and the Ninth Circuit noted the change in Murillo-Chavez v. Bondi, 128 F.4th 1076 (9th Cir. 2025). Loper Bright also said that earlier decisions relying on deference remain subject to stare decisis, so Marmolejo-Campos should be treated as binding in the Ninth Circuit unless it is overturned, though we would expect the point to be argued.

Repeat DUIs carry separate risk. In Matter of Castillo-Perez, 27 I&N Dec. 664 (A.G. 2019), the Attorney General held that two or more DUI convictions in the relevant period create a rebuttable presumption that a person lacks good moral character, which is required for cancellation of removal for people without green cards. If you apply for relief from removal, you may also carry the burden of proving that a conviction does not disqualify you, under Pereida v. Wilkinson, 592 U.S. 224 (2021).

Detention is another concern. Under 8 U.S.C. § 1226(c)(1)(E), mandatory detention now reaches a person who is inadmissible on certain grounds, including being present without admission, and who is charged with, arrested for, or convicted of, or who admits committing, “any crime that results in death or serious bodily injury to another person.” That wording turns on the result, so Leocal’s focus on use of force may not help there.

What this means if you have a DUI with injury

These steps are our practical advice, based on these decisions and the current statute.

• Get the exact statute and subsection. The analysis depends on what the conviction required, so obtain the charging document, the plea and the judgment.
• Talk to an immigration lawyer before you plead. A statute or plea that requires purposeful or knowing use of force can change the outcome. So can the length of the sentence, because a crime of violence is an aggravated felony only with a term of imprisonment of at least one year. Suspended time counts, because the term includes the confinement a court orders even if it is suspended.
• Challenge the label if the government uses it. If the notice charges a crime of violence for a DUI statute that can be violated with ordinary recklessness or less, raise Leocal and, in the Ninth Circuit, Fernandez-Ruiz.
• Do not stop at crime of violence. Check moral turpitude, good moral character, detention and any other charged ground.
• Keep the records for relief. Under Pereida, an unclear record can hurt the person applying for relief.
• Treat the DUI as a warning. Treatment, compliance and no further arrests are important evidence if you later ask for discretionary relief. With two or more DUI convictions in the relevant period, rehabilitation alone does not overcome the good-moral-character presumption.