|Updated: March 21, 2017
In 2013 (the last year for which complete statistics are available) police in England and Wales administered roadside breath tests to over 684,000 drivers and riders. Approximately 10%, in excess of 72,000 people, either tested positive or refused the test. What is the effect on these drivers’ ability to travel to the US if they are arrested for, or convicted of, drink driving?
The website of the US Embassy in London is clear: ‘Our advice is that if you have ever been arrested, cautioned or convicted you apply for a visa.’ This advice has been rigorously confirmed in multiple webchats with consular officers at the US Embassy in London, such as the November 26, 2013 webchat.
Consistent with this general statement, it is the policy of the US Embassy, London that a person convicted of drink driving is not eligible to travel on the Visa Waiver Program. From an Embassy webchat on December 9, 2010:
Q: I don't understand why I need to apply for a visa just because of one drink driving conviction. I don't want to work in America, I just want to visit. Can't I do this on the ESTA?
A: A drunk driving offense is considered very serious. You must apply for a visa. Depending on when the conviction occurred, we will need to determine that there is no harmful behavior associated with your alcohol use.
What to Expect in the Visa Interview
Under the regulations of the Department of State on this subject (9 Foreign Affairs Manual 302.2-7(B)(3)), consular officers must refer applicants for a medical evaluation with the Department’s designated doctors (called ‘panel physicians’) if the applicant has either (1) a single alcohol-related arrest or conviction within the last five years; (2) two or more alcohol-related arrests or convictions within the last 10 years; or (3) if there is any other evidence to suggest an alcohol problem. Therefore the visa interview is likely to be quite brief, for once the consular officer learns of the drink-driving arrest or conviction he or she will direct the applicant to contact the London Embassy’s panel physicians to make arrangements for the examination. Once the physician’s report has been reviewed by the Embassy the visa applicant will be informed as to whether he or she will be issued a visa.
At the Doctor’s Office
The role of the panel physician in this situation is to determine whether either of the following is true of the applicant. If so, the applicant will be found to have a Class ‘A’ medical condition and will be ineligible for a visa.
- The person has a current physical or mental disorder with associated harmful behaviour, or
- The person has a past physical or mental disorder with associated harmful behaviour if the harmful behaviour is likely to recur or lead to other harmful behaviour in the future.
To that end the physician will perform a standard immigration medical examination. This should include a detailed medical history, a chest X-ray, and the drawing of blood samples.
In making the decision as to the presence or absence of a disorder with associated harmful behaviour the panel physician must use his clinical judgment as informed by the Technical Instructions for Physical or Mental Disorders with Associated Harmful Behaviors and Substance-Related Disorders as promulgated by the US Centers for Disease Control and Prevention, and the diagnostic criteria in the current Diagnostic and Statistical Manual of Mental Disorders, as periodically updated by the American Psychiatric Association. After the evaluation the physician will inform the Embassy whether the applicant has (1) no physical or mental disorder, (2) a Class ‘B’ physical or mental disorder, or (3) a Class ‘A’ physical or mental disorder.
Although a Class ‘B’ medical condition may include someone who has ‘a physical or mental abnormality, disease or disability serious in degree or nature amounting to a substantial departure from well-being,’ only a Class ‘A’ medical condition renders a visa applicant ineligible. If the panel physician makes a Class ‘A’ finding, the consular officer must find the applicant ineligible for a visa.
Overcoming an Ineligibility
Waivers are available to allow issuance of visas, and travel to the United States, for alcohol-related ineligibilities. For information on the waiver process, please see our article Washington, We Have a Problem! Ineligibilities and Waivers.
It is also possible to avoid an ineligibility for alcohol-related harmful behaviour, or to avoid a second period of ineligibility, by showing that one does not have, or no longer has, a ‘physical or mental disorder’ related to alcohol. By analogy to the treatment of controlled substance (drug) abuse or dependence, the Foreign Affairs Manual and the Technical Instructions speak in terms of requiring a period of ‘remission,’ during which ’no substance use or mental disorder-associated behaviors have occurred.’ The period of remission that will be sufficient to avoid a Class ‘A’ finding is subject to the physician’s clinical judgment.
Although there is evidence that drink driving in the UK has been declining since 1997 the punishment meted out by the US Embassy, London to visa applicants with alcohol-related arrests has become ever-more stringent. This short article does not purport to cover all permutations of this complex issue and should not be relied upon as a substitute for legal advice tailored to the specifics of your situation. If you believe that legal advice would be helpful you should consult a qualified US immigration attorney.