By: William C. Head, Criminal Defense Attorney Atlanta GA and ABA Board-Certified DUI Attorney
Because travel is now a huge part of many Americans lives, traveling to Canada with a DUI is a hot topic of discussion. Salespeople for various businesses with a prior impaired driving conviction have customers in Canadian cities and occasionally need to fly or drive there. Processing becomes more complex and intricate depending on the time you need to stay in Canada (i.e., seeking to become a permanent resident).
A DUI conviction in the United States can block or greatly slow down the process of entering Canada with a DUI. New rules implemented in December of 2018 altered the entire landscape of this specialty area of law practice. Much depends upon the offense, and whether it was a felony or misdemeanor.
A TRP application may be routinely granted, like some of our firm’s professional sports players have had to seek to play once or twice a year in Montreal or Toronto. Our law office typically steers clients with an existing criminal history to a top-rated Canada immigration lawyer. If your criminal record is classified as a felony DUI with jail time, don’t expect to get into our northern neighbors borders unless you apply for criminal rehabilitation or possibly are granted a Presidential pardon.
Drunken driving or drugged driving can be generically described as having committed the criminal offense of intoxicated driving or driving while impaired, by HOWEVER that criminal act is defined under your state’s laws. The acronym used is irrelevant since the United States has over a dozen different abbreviations for essentially the same crime. The graphic below shows most of the acronyms used.
A typical DUI arrest begins with some reason for a law enforcement officer to meet the operator of a motor vehicle. Traffic ticket offenses (e.g., speeding, failure to maintain lane, following too closely, hit-and-run), car accidents, DUI checkpoints, or people found sleeping inside their vehicles account for most OWI-DUI arrests.
Often, police investigators at the scene will request field sobriety tests from the individual, which are optional and voluntary. If an arrest is made, the arresting officer is tasked with reading an implied consent notice, which tells the driver that NOT agreeing to post-arrest testing of breath, blood, urine or other bodily substances can trigger loss of all driving privileges before the criminal case gets resolved.
In a majority of American states, modern drunk driving laws have added a requirement of mandatory installation of ignition interlock devices after convictions, and (in some states) after arrest and before conviction, as a public safety measure. Because driving intoxicated laws are so different, consulting with local legal counsel and DUI lawyers is best.
One other important note is that a reckless driving disposition does not mean that you can automatically enter Canada. Some less experienced DUI lawyers may tell you that a DUI reduced to reckless driving “opens the door,” but that is a trap for the uninformed visitor to Canada. Reckless driving in Georgia is still a serious misdemeanor crime. This offense may be one of the misdemeanors that qualify for “grandfathered deemed rehabilitation” from the passage of time. Read more below about how foreign nationals must follow all prerequisite steps before deemed rehabilitation is possible.
This passage from the above, linked website gives you a clear message to NOT “guess” about Canadian laws:
“In addition to impaired driving, the following offenses are now also considered serious criminality in Canada:
Any American who has ever been convicted of such an offense could now be rendered inadmissible to Canada for life on the grounds of criminality. While operation after revocation is considered a more serious offense than driving with no license, an offense in the United States for driving without a valid license could still equate to the more serious crime in Canada. Even Americans with a single alcohol-related traffic violation from more than ten years ago, such as a DWAI in New York, can now be ineligible to visit Canada even though the offense was not a criminal conviction.
To qualify for “deemed rehabilitation,” the passage of time since the absolute, total closing out and conclusion of a minor offense conviction in another nation, has happened. Canadian law looks at its own laws and statutes, and (if the maximum statutory punishment) for the other nation’s offense is less than ten years of potential jail time, most minor offenses will qualify, such as a reckless driving GA misdemeanor.”
Exceptions under the 2018 legal change would be if that offense in another sovereign nation entailed physical harm to another, significant property damages, or use of a weapon to carry out the crime. DUI-DWI law in Canada was altered to now carry up to ten years in prison, so now this “aging off” process will not work, for driving under the influence. The exact wording of the new law is: “an offence that if committed in Canada would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of less than ten years.”
So, if approaching any checkpoint at the Canada ports, roads, or airports, the onus is on you to prove to Canadian border officials that you are fully eligible for deemed rehabilitation. The new, tough Canadian legislation means you can now be denied entry to Canada because of a single DWI, even if it happened more than a decade ago. In 2019, if a person is criminally inadmissible to Canada for DUI or other misdemeanor or felony conviction, you will require a Temporary Resident Permit document (TRP) or Criminal Rehabilitation (CR) to lawfully cross the border.
The rules of getting advice BEFORE showing up in a Canadian airport are still true if you had a DUI expungement in the USA. Canadian immigration specialists can evaluate your DWI-DUI case disposition under various states’ laws, whether a diversion, conditional discharge or expunction.
The last thing you want to do is to lie to an immigration officer in Canada since he or she can see our Homeland Security records as part of the post-9/11 efforts to deter terrorists. In case you are thinking “I’ll just SNEAK IN” or lie about your record, this is a Canadian crime. Just like being charged in the United States with a federal crime, illegal entry in Canada is a federal crime in that country.
In addition to providing over 30 different crimes that Canada now considers highly serious, the above-cited Canadian immigration law webpage gives this warning:
“Even if you are not classified as inadmissible, however, if you have ever been arrested border officials can likely see this, and you should consider obtaining a legal opinion letter before trying to cross the Canadian border. Temporary Resident Permits and Canadian Rehabilitation can both enable Americans to potentially ameliorate their condition of being criminally inadmissible to Canada.”
In the interest of fair disclosure, our DUI lawyers will be advising you to obtain legal advice from a skilled Canadian attorney if you need to seek temporary or permanent admission to the nation of Canada, for issues of inadmissibility like a DUI, which that country calls a “status” offense. Since the December 18, 2018 change in their laws, the processing times have lengthened. Getting the legal opinion letter drawn up about admissibility, to facilitate border crossing, may satisfy Canadian authorities.
Other than foreigners who also are bonafide owners of land in Canada possibly getting a TRP (temporary resident permit), an education-related permission to enter Canada (called Study Permit), or a short-term or long-term “work permit” will be a challenge. Unless the person meets the requirements for criminal rehabilitation or a TRP, much more complexity is involved. Either of these necessitates guidance from a member of the Canadian Bar to assure success.
The best DUI lawyers in Atlanta, Georgia will offer you a FREE lawyer consultation and explain how a criminal defense attorney reviews the merits of a pending DUI case. If hired, our job will be to find a non-DUI solution for your impaired driving case. Once all police evidence is provided by the Prosecution, our criminal attorneys can implement a game plan for either obtaining a non-DUI disposition or fighting for acquittal, if that is what is needed.
Best Lawyers in America:
Super Lawyers for Head, Yager, and Larry Kohn
Bubba Head is Board-Certified by the National College for DUI Defense
Canadian Government Website About Electronic Travel Authorizations and CBSA Rules