DUI Questions

[fuji]

Yes, that info is shared.

It is sort of shared. I don't think that it is automatically sent to the US. However, I think the computer systems are hooked up so that the US can pull it. So if you cross the border it doesn't automatically show up that you have a conviction, but with a few keystrokes the US agent can check and learn that you do.

That system could change/improve at any moment.

The interesting twist here is what happens after you get a pardon. When the US agent looks up your information it is downloaded to US computer systems. If you later get a pardon in Canada and clear your record that does not automatically clear the record that was downloaded to the US, since they have made an independent copy of it, that they keep. The US may not also recognize the validity of a Canadian pardon, so even after getting a Canadian pardon the US customs people will still see your conviction and deny you entry. You may need a US pardon of some sort...

At this point I'm really unclear on the details, but if you get trapped in that world, welcome to hell.

One way to avoid all of that is, if you KNOW that you are inadmissible to the US, do not try and cross. If they never have any reason to download your record into their computers then they never will, and when you get a Canadian pardon and your record is clear, there will be nothing to download.

 

[fuji]

I find that type of thing questionable from a privacy standpoint.

There is no privacy issue. Our courts are open to the public, court transcripts are a matter of public record, and so on. It's not private information. It's public information.

some relatively minor, non-violent criminal behaviour and received a suspended sentence, say, 30 or 40 years ago

You can get an automatic pardon for a minor conviction that is more than 10 years old. In some cases (some discharges) it's actually automatic in that you're pardoned even if you don't ask to be. In most cases you have to submit a request for the pardon--which will take you 10 minutes to fill out and send in. A few weeks/months later you'll be clear and the government will not share information about your pardoned crime with foreign governments.

Also, for the US in particular, one minor crime 30-40 years ago would not result in you being denied entry in any case. You need two minor crimes and more recently than that, or one major crime, to be denied entry to the US. Don't ask what the definitions of minor and major are, ask a lawyer, at that point it gets tricky. The problem with DUI charges is that they may fall under the "moral turpitude" category, and the US doesn't admit people with stains on their moral character.

(Caveat: If you enter the US and LIE about having a conviction, even one that would not have denied you entry, then you can immediately, and permanently be denied entry on the grounds that you lied to an immigration officer. So watch out.)

 

[fuji]

p.s. -- if it makes anyone feel any better George W. Bush is inadmissible to Canada on the grounds that he has a DUI, and he requires a special temporary 30 day permit from the Minister of Immigration himself to enter Canada. Not even the Minister has the power to grant him entry for longer than the temporary permit, if Bush wants to stay longer he has to appear before a Canadian judge and prove that he has been rehabilitated.

So you're in good company, or at least, famous company

 

[thompo69]

You can get an automatic pardon for a minor conviction that is more than 10 years old. In some cases (some discharges) it's actually automatic in that you're pardoned even if you don't ask to be. In most cases you have to submit a request for the pardon--which will take you 10 minutes to fill out and send in. A few weeks/months later you'll be clear and the government will not share information about your pardoned crime with foreign governments.

Your statement about discharges is correct, but they aren't pardons. A pardon says you committed the crime, and you're forgiven. A discharge erases the conviction (1 year after an absolute discharge, 3 years after a conditional discharge). Pardons don't wipe your record, and can actually be rescinded.

 

[thompo69]

Also, for the US in particular, one minor crime 30-40 years ago would not result in you being denied entry in any case. You need two minor crimes and more recently than that, or one major crime, to be denied entry to the US. Don't ask what the definitions of minor and major are, ask a lawyer, at that point it gets tricky.

Are you sure about that? That's the Canadian definition of criminality as a grounds for exclusion from IRPA. I'm pretty sure the US are a little more strict. The advantage to a conviction from 30-40 years ago, is that it may not be in the electronic system and thus not accessible to the US.

 

[Cobster]

Thread about this awhile ago...
https://terb.cc/vbulletin/showthread.php?t=149227

 

[slowpoke]

p.s. -- if it makes anyone feel any better George W. Bush is inadmissible to Canada on the grounds that he has a DUI, and he requires a special temporary 30 day permit from the Minister of Immigration himself to enter Canada. Not even the Minister has the power to grant him entry for longer than the temporary permit, if Bush wants to stay longer he has to appear before a Canadian judge and prove that he has been rehabilitated.

So you're in good company, or at least, famous company

Many thanks Fuji. I am not the one with a criminal record but we often travel with another couple, one of whom (the guy of course) had a drunken April fool's day episode with a mailbox in the early 70's and wound up convicted of theft over $200. He mentioned it a couple of months ago in the context of a trip to Barbados. He's never sought a pardon and has had nothing more than the odd speeding ticket since then so he's probably OK. But he was a huge anti-Viet Nam war activist in his salad days and he worries about flights to other destinations being unexpectedly diverted to the US where they'd "get him". I think he's flattering himself but anything is possible with Homeland Security.

 

[Aardvark154]

p.s. -- if it makes anyone feel any better George W. Bush is inadmissible to Canada on the grounds that he has a DUI, and he requires a special temporary 30 day permit from the Minister of Immigration himself to enter Canada. Not even the Minister has the power to grant him entry for longer than the temporary permit, if Bush wants to stay longer he has to appear before a Canadian judge and prove that he has been rehabilitated.

So you're in good company, or at least, famous company

True. However, given the length of time that has gone by since the conviction he could apply to have the bar on his admission to Canada lifted. Such would normally be granted even were he "Joe six-pack" (perhaps not the best choice of names). The principal to take away from all this is a) Inquire whether there will be a problem - both border services have listed telephone numbers and addresses, and there are Consulates in both Toronto and Buffalo. b) if you have further questions consult a lawyer it will probably be money well spent c) don’t complain, file the required paperwork..

 

[Aardvark154]

he was a huge anti-Viet Nam war activist in his salad days and he worries about flights to other destinations being unexpectedly diverted to the US where they'd "get him". I think he's flattering himself

He should check and see. I doubt he has an arrest warrant but better to know than not to know. The only other thing I'd bother to spend the time considering is whether for some reason he is on a watch list. I rather doubt protests 40 or so years ago will put him there unless he did something like make terroristic threats (I'm going to kill__ blow up___ the. . .) or actually was involved in a violent act. He's flattering himself if he fears that having chanted "Hey, hey ho, ho, LBJ has got to go" cuts it.

 

[thompo69]

p.s. -- if it makes anyone feel any better George W. Bush is inadmissible to Canada on the grounds that he has a DUI, and he requires a special temporary 30 day permit from the Minister of Immigration himself to enter Canada. Not even the Minister has the power to grant him entry for longer than the temporary permit, if Bush wants to stay longer he has to appear before a Canadian judge and prove that he has been rehabilitated.

So you're in good company, or at least, famous company

I believe there are a number of circumstances that make him admissible without a temporary permit -- nature of the crime, time lapsed since the offence, no further convictions, etc. Under the IRPA regulations, all of these things make him admissible.

 

[Keebler Elf]

The problem with DUI charges is that they may fall under the "moral turpitude" category, and the US doesn't admit people with stains on their moral character.

From what I've read, a general impaired charge doesn't normally fall under the "moral turpitude" category. Of course, the bottom line is that you're pretty much at the mercy of the customs officer.

You can file paperwork in advance to get permission to enter the US, but I'm wondering if that's a bad move since if the border guards don't ask then you don't have to tell. If you file paperwork, you'll be immediately red flagged.

 

[Geographic]

Toxicology report

Your cousin should get a tox report. If it is favourable, then the crown may agree to withdraw the over .80 and go with the careless driving. Of course any lawyer involved in alcohol offenses will advise to get one done unless the readings are crazy.

 

[shawnbg]

So one of my cousins got picked up for driving while over the legal limit last night. Car towed and 90-day license suspension. He's got to go to court in April/May.

Anyone been through this before? Can a lawyer do anything?

Must have been one of those cases where the evidence of DUI was, at best, marginal or the cops made some crucial mistakes and the police "overcharged" in order to encourage a plea on the lesser offence.

That is why each case depends on its own facts.

If the evidence of DUI was reasonably solid, it just does not happen.

But if you want to think otherwise, by all means go ahead... go get drunk, drive and get arrested... see if you can perform some magic. And do enjoy yourself!

Perry

90 day suspension for a simple charge of DUI before being convicted? Guess the laws have changed in the last few years. I got charged for it twice about 10 years ago, before DUI was considered such a major offense and so frowned upon by society, however both times I only received a 24 hour license suspension. I didn't get into an accident and nobody got hurt, just happened to be pulled while over the limit, once for simply pulling out of the parking out lot of a popular bar where the cops were just waiting.

I was lucky and beat both charges and learned my lesson. I don't want to give you advice on how to beat it, but it can be beaten with a good lawyer. Allan Gold is generally considered one of the best DUI lawyers in the country and usually wins, but you'll pay through the nose for it. Not only did he get me off the charge twice, but also two of my friends. So, thats four for four that I just know of myself, excluding the fact that I've heard he's won over 80% of his DUI cases.

Interestingly, Donny Peterson just hired him after the Hells Angels raid.

http://www.ctv.ca/servlet/ArticleNe...llsangels_folo_070405/20070405?hub=TopStories

 

[fuji]

Are you sure about that? That's the Canadian definition of criminality as a grounds for exclusion from IRPA. I'm pretty sure the US are a little more strict. The advantage to a conviction from 30-40 years ago, is that it may not be in the electronic system and thus not accessible to the US.

Most countries are similar in overall approach but the details differ from country to country. In the US it's meeting any of a laundry list of conditiosn, any one of which would exclude you: One crime of "moral turpitude" for which the maximum _possible_ sentence is more than one year; two or more crimes of moral turpitude; two or more crimes of any sort for which the maximum _possible_ combined sentence is greater than five years, and so on. Crimes involving drugs or prostitution have special provisions. Admitting to the "essential elements" of any of the above even if not actually convicted (so pleading guilty to get a discharge where it was possible to get a >1 year sentence catches you). There are more conditions, exceptions to the conditions, and it takes a lawyer to tell you what is or isn't a crime of moral turpitude, what the maximum sentence really was, etc.

If you have any sort of criminal record it's best to get competent legal advice to work out whether any of that applies to you.

 

[fuji]

I believe there are a number of circumstances that make him admissible without a temporary permit -- nature of the crime, time lapsed since the offence, no further convictions, etc. Under the IRPA regulations, all of these things make him admissible.

They don't make him admissible. They make him someone who could easily be declared rehabilitated, if he were to submit an application to a Canadian immigration court. Unless he actually submits himself to the Canadian courts, though, he won't automatically be declared rehabilitated, and so long as he's not rehabilitated the Ministry of immigration is bound by law to exclude him.

So plainly he could make the case, but he probalby won't lower himself to stand before a Canadian court.

 

[fuji]

I did some digging and a DUI is apparently not a crime of "moral turpitude" as someone said above, I was wrong about that. There's some good information here:

http://answers.google.com/answers/threadview?id=338598

 

[thompo69]

They don't make him admissible. They make him someone who could easily be declared rehabilitated, if he were to submit an application to a Canadian immigration court. Unless he actually submits himself to the Canadian courts, though, he won't automatically be declared rehabilitated, and so long as he's not rehabilitated the Ministry of immigration is bound by law to exclude him.

So plainly he could make the case, but he probalby won't lower himself to stand before a Canadian court.

But it's the Minister who makes the determination of rehabilitation, something which, given his position, would be pro forma. The Courts only need need to get involved if there's an appeal.

 

[slowpoke]

He should check and see. I doubt he has an arrest warrant but better to know than not to know. The only other thing I'd bother to spend the time considering is whether for some reason he is on a watch list. I rather doubt protests 40 or so years ago will put him there unless he did something like make terroristic threats (I'm going to kill__ blow up___ the. . .) or actually was involved in a violent act. He's flattering himself if he fears that having chanted "Hey, hey ho, ho, LBJ has got to go" cuts it.

He won't have arrest warrants but he did trespass on US Embassy property in Ottawa and was questioned by the city police. They let him go with a warning but I'm sure their names were kept on a list for a while at least. He was also involved with the alternative press & student newspapers so they printed all kinds of anti-war and anti-draft shit. Those anti-war groups also aided and encouraged draft dodgers but from our side of the border. He's sure he would have made it onto a watch list back in the day but who knows if he's still on it. He's been to the US a few times without incident but not since all these Homeland Security measures have been put in place. I'm going to suggest he checks it out before he goes back to the US.