I have been involved in the legislative process enough to know that changes in the law sometimes have consequences that no one has anticipated. I believe that the recent change in immigration law enforcement here in Arizona, under Senate Bill 1070, will have an unexpected impact on auto accident injury claims. Specifically, officers investigating an auto accident did not historically make inquiries into immigration status. That may now change.
The news reports never quote the actual language of the law, but it is important in understanding how it may be applied. Here is part of SB 1070 that was upheld by the Supreme Court, contained in A.R.S. §11-1051:
For any lawful contact made by a law enforcement official . . . where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made . . . to determine the immigration status of the person. (underline added)
In spite of commentators saying that there needs to be a justified “stop” by an officer before immigration status can become an issue, that is not what this law says. The words it uses are “lawful contact,” which is not the same as a lawful “stop.” An officer does not have to reasonably suspect someone of a crime to have “lawful contact.” So, applying this language to an auto accident investigation, one of the first things an investigating officer will do is ask both drivers for their licenses. That is “lawful contact,” even with a driver that did nothing wrong. What if that driver has no driver’s license or has a driver’s license from Mexico? Is that “reasonable suspicion” that the person is an alien who is unlawfully present in the U.S., that would justify or require further inquiry? Maybe. Maybe not. I predict this scenario will be one of the earliest test cases under the new law.
What if the officer then checks that driver’s immigration status with the federal authorities and finds that he is in the U.S. without documents, and the driver is in the car with his wife and kids? Is that now “reasonable suspicion” to run the wife and kids through the federal check as well?
This is not just an academic exercise for me, as I do speak Spanish, and represent many Spanish-speaking auto injury victims. I am not answering these questions, only raising them, because no one seems to know the answers yet. So, altough officers investigating an auto accident did not usually make inquiries into immigration status in the past, that may now change.