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Canadian Travel --- Denial of Entry Based On Drunk Driving, Hit-Run, Driving On a Suspended License, Refusing Chemical Test

Some countries exclude non-citizens from entry based on criminal convictions reflecting a lack of good character.  Entry into Canada is particularly problematic for folks with a drunk driving conviction on their record, and all the more so because the United States shares criminal and motor vehicle databases with Canadian authorities. 

 Canada’s Immigration and Refugee Protection Act, Chap. 27 (2001), § 36, states that a “foreign national” is “inadmissible” if that person “committed” or was “convicted of” a single offense that would constitute an “indictable” offense under an Act of Parliament.  It does not matter if the offense occurred in another country.  Driving under the influence, driving with a .08 percent or higher alcohol content, refusing a chemical test, leaving the scene of an accident, and driving on a suspended license, are each independently deemed to be indictable offenses under the Criminal Code of Canada. A conviction for anyone of these offenses makes one inadmissible to Canada.  Moreover, a “conviction” includes deferred dispositions where a “guilty” or “no contest” plea has been entered.

In California, an individual convicted of “reckless driving” pursuant to California Vehicle Code  (CVC) § 23103 may be excluded because a conviction involving “dangerous driving” is an excludable offense.  If the reckless driving conviction was alcohol related (i.e., the subject is sentenced pursuant to CVC § 23103.5) exclusion may be based on dangerous driving or simply because the elements for a DUI conviction in Canada are present.  These cases should be referred to a specialist in Canadian Immigration law.

In addition to convictions causing a problem with Canadian travel, admission may be denied to one who has “committed” an act that amounts to an indictable offense.  Hence, an administrative suspension by the Department of Motor Vehicles for a DUI-related incident (excessive BAC or chemical test refusal) is grounds for exclusion.

Inadmissible persons found in Canada may face deportation and possible prosecution. 

REHABILITATION

Generally, the aforementioned first offense individuals are “deemed” rehabilitated after ten years from the end of the last court-ordered sanction (e.g., when the term of court probation ends).  However, multiple offenders cannot be deemed rehabilitated!

Folks eligible for rehabilitation after 10 years may apply for it after five years.  Forms to apply for rehabilitation are available online at the Immigration Canada website, but fees and supporting documentation are required.  The process can take up to a year. 

Those persons seeking entry sooner than these deadlines may apply for a Temporary Resident Permit which is good for up to six months.  These can be issued at the border but are usually denied.  It is best to apply through the Canadian Consulate before travelling, and at least six months ahead of time.  Those who are travelling for business, particularly where it has some benefit to Canada and her people, have a better chance of obtaining approval.

CAUTION:  One should not rely upon this information before making a determination about Canadian travel.  You should consult with Canadian Immigration Counsel.

 


The Legal Defense

Even many attorneys don’t know it, but California law requires more for a drunk driving conviction than just sitting behind the wheel of a car while intoxicated. Among other things, the State must prove beyond a reasonable doubt the following:

- There must have been "volitional movement" of the vehicle, which means that the car has to move, and you must have voluntarily moved it! Sitting in a parked vehicle is not enough to prove drunk driving absent additional evidence---no matter how drunk you were!

- It must be proven that you were impaired from alcohol or drugs, or at or over the per se legal limit of .08, AT THE TIME OF DRIVING. Chemical breath tests and blood testing are never done at the time of driving, and hence the results do not directly prove your alcohol level at the time of driving. A person who has a final drink just before going home may be only .07 or less at the time of driving, but have their alcohol level rise to a higher level by the time he or she gets tested. A good expert witness can help demonstrate this to a jury, and a good lawyer can bring the point home to them!

- Voluntary consumption of drugs or alcohol must be the cause of impairment. If somebody spiked your drink or drugged you at a party you did not voluntarily get intoxicated! Involuntary intoxication is a complete defense to the charge of drunk driving.

- Was your driving limited to some type of emergency not created by you, and for which there appeared to be no reasonable alternative? If so, you have a defense to the charge of drunk driving even if you bombed the chemical and field sobriety tests!

As you can see, there are a number of different defenses to driving under the influence. You need, however, an experienced DUI defense attorney to spot one or more of them!

Call Paul Burglin now at (415) 453-0534.