Law enforcement agencies across this country should review the practices of their officers and their department procedures on handling foreign drivers. As I write, I must clarify that I have not reviewed the state statutes of all the states in regards to operators with foreign licenses. I have, however, read many of them and they are consistent with the points of this article. Many states have a section of their statutes that reads something like:
“Persons Exempt From License Requirement-A person who is a nonresident, who is at least sixteen years of age and who has in the person's immediate possession a valid driver license issued to the person in the person's home state or country while the person is operating a motor vehicle requiring a class D license.”
It is a common practice for officers to arrest and charge drivers with foreign driver licenses for driving without a state issued driver license, especially, if the driver has lived in the state for many months or years. Many if not most of these drivers are illegal aliens. Many arguments are made to justify these arrests, but unless they are justified under the law, the drivers’ rights are being violated.
I think the majority of the officers that arrest foreign drivers do not realize that they can drive in this country with their home country license. Some other reasons for these arrests fall within the following:
a) They are here illegally; therefore they should not be driving.
I have not read a statute that distinguishes between legal and illegal status on determining when a foreigner can drive in this country. The vast majority of state and local law enforcement in this country does not engage in immigration enforcement. Nor do they have the ability to determine quickly if the person is in the country legally. The officer can only rely on the statutes, ordinances, and policies to determine the manner of enforcement. The driver may be arrested and made to post bond for other traffic violations, but not for driving without a license.
b) The driver is a resident for several years and, therefore, is required to get a state driver license.
If the driver has a foreign license, he is still licensed to drive. Violating the residency requirement does not make the foreign license null and void. There is a problem with the residency requirement, however. Many states do require that a person get a state driver license within so many days of establishing residency. The problem is, in order for a person to establish residency, he must have proper authorization from the federal government to be here. Many states have as part of their driver license statute something like:
“Persons to Whom the Department May Not Issue a License -Any alien unless such person presents valid documentation of identity and authorization for presence in the United States issued pursuant to the laws of the United States.”
-And-
Any person who is a nonresident-Any alien unless such person presents valid documentation of identity and authorization for presence in the United States issued pursuant to the laws of the United States; provided, no license shall be issued to any alien whose documentation indicates the alien is a visitor or is not eligible to establish residency.
A person cannot legally establish residency if he is in the country illegally. Therefore, it is impossible to get a state license. If a foreigner legally cannot obtain a state driver license, how can he be charged for not complying with the law?
c) The foreign license looks fake.
Looking fake is not sufficient. The officer is required to document the reasons why it is fake. Training and experience is good, but I would also strongly recommend, The International Edition of the I.D. Checking Guide. This book is an excellent reference book for detecting fake foreign driver licenses. A jeweler’s loupe and a handheld black light are also very useful. If you run across many licenses, especially, from Mexico or other South American countries there is a high likelihood they are fake.
d) I cannot verify that the license is valid.
It is probably impossible to run a computer check on a foreign license to establish if it is valid. All you can do is examine the expiration date and ask questions. The burden is on you to prove it is not valid. The Fourth Amendment to the Constitution requires that you have probable cause that the license is invalid before arresting.
If you are a supervisor or administrator of a law enforcement agency, I strongly recommend you talk to your officers. You may be surprised at how many improper arrests are occurring with foreign drivers. You probably should review and maybe revise your department policies. For years foreigners from south of the border, especially, have faced these types of arrests. They pay their money and go on. In today’s climate, however, they are becoming organized into activist groups. It is a matter of time before attorneys with these groups begin filing suits against agencies who engage in these practices.
Most officers cannot arrest illegal aliens for being here, and the federal government will not deport them. It may be a quirk in the law, but illegal aliens can drive here with their home country licenses as long as they keep them current, regardless of how long they live here. Our only choice is to come up with a policy on how to fairly and legally deal with them.