Traveling to Canada after a DUI Charge that Resulted in Non-Conviction
Depending on the aftermath of being arrested for a DUI, it is possible that the charge may not hold. There are a couple of different outcomes that may result in a conviction not being registered or being removed from the record. Sometimes charges are withdrawn, which means the matter cannot proceed any further in court. For example, if there is a lack of evidence or the judge refuses to adjourn. More common is the Conditional Discharge, which may occur if a first time DUI is plead down to a lesser charge or involves participation in a Discharge Program (for example, being required to attend classes or do community service). Finally, there is the Non-Conviction. If you charges were dismissed, stayed, or did not result in a conviction then you will not have a criminal record.
Non-Conviction and Entering Canada
The problem is, if you received a Non-Conviction for your DUI charge, it doesn't necessarily mean that you will have no issues upon traveling to Canada. We live in an information age where people have more access to other's personal information than ever before. When you arrive at the border or port of entry into Canada, the Canada Border Services Agency officer may choose to screen your profile for any indications of a criminal history. When this happens, the officer will often refer to the Canadian Police Information Centre (CPIC) database which contains records from the national (FBI), state, and even county levels. Unfortunately, it is not unheard of for an arrest record to pop up without the rest of the information from the disposition. Databases are not always updated to reflect the whole story. If the officer sees and arrest record, but the details of your non-conviction or conditional discharge have not been added to the database, you might still be refused entry into Canada.
For people with older charges that may have occurred before wide adoption of electronic record keeping, this can also create headaches as well. Often paper based records do not make the transition to electronic databases intact. Any gaps in information may leave the officer with no choice but to refuse entry until proper documentation can be provided.
Whatever conclusion the officer draws at the border or port of entry into Canada, the ultimate responsibility of clarifying any charges or arrests on your criminal record rests with you. That means that even if you did have a DUI that resulted in a conditional discharge or non-conviction, you should be prepared to prove this to the CBSA officer if necessary. Documentation that could help prove that you were not convicted of the DUI might include:
Court dockets or a record of the disposition from the state or county court house where the arrest was processed
A current state clearance background check
Up to date DMV records
A legal opinion letter explaining your situation
In any event, it is always best to be proactive and plan ahead if you anticipate potential problems when attempting to enter Canada. Let our team of Canadian immigration lawyers and consultants help you prepare so that you can avoid potential embarrassment, delays, or worse at the border or port of entry.
Perhaps you have been arrested for a DUI but have not yet received a trial date. Despite now yet being convicted of a DUI, it can still be interpreted as a conviction when traveling to Canada. Another scenario is that you were charged with a DUI in Canada. In this case, the information the officer will have access to at the border will be very accurate and up to date. That means that if the charges were withdrawn, dismissed, or you were found not guilty, you should have no trouble passing through at the border or port of entry.
Deferred Sentence DUI and Entering Canada
Another alternative to a non-conviction could be something called a "deferred sentence". If you receive a deferred sentence for a DUI charge, the court gives you the opportunity to complete a period of probation before sentencing. Quite often this period of probation is 2 years or less. If you successfully complete the conditions of the probation the court will review you file and it is possible that the charges against you will be dismissed. If you are coming to Canada and you are currently undertaking a deferred sentence, the officer examining you at the border will not presume that your charge will eventually be dismissed. Even if you have proof that you are complying with the terms of the probation (for example, using an Ignition Interlock Device or doing community service), this does not ultimately prove that the charge will later be dismissed. If you find yourself in this situation, it is best to seek legal counsel before attempting to enter Canada.
Another possibility depending on the U.S. jurisdiction where the DUI occurred is "Nolo Contendere" or a plea of "no contest". If you enter a plea of no contest, it is technically not a guilty plea but carries many of the same effects as one. This can be administered as part of a plea bargain. For this type of plea, you might still be required to obtain special permission to enter Canada by applying for a Temporary Resident Permit (TRP) or Criminal Rehabilitation.
Voluntary Dismissal DUI charge and Entering Canada
It is also possible to receive a voluntary dismissal, sometimes referred to as "Nolle Prosequi." This is Latin for "we shall no longer prosecute" and can be declared by a prosecutor during a criminal case. When this happens, the prosecutor is basically admitting to the court that either the charges can't be proven or that there is a flaw in the evidence and the defendant is innocent. It is possible that the procedure followed during testing the offender's blood alcohol content was in error. Sometimes faulty equipment can result in inadequate evidence to proceed with a DUI conviction as well. For example, a faulty breathalyzer or a contaminated blood sample may compromise evidence and result in a lack of reliable proof. If this is the case, it is not unheard of for the accused to be exonerated of the DUI. However, even in this situation there may be complications upon attempting to enter Canada, especially if the initial arrest record remains in the database.
Further compounding the confusion surrounding admission to Canada with a DUI is the myriad variations in State legislation. For example, many U.S. States have first time offender diversion or conditional discharge programs in place that can lead to reduced or sealed charges. Other states may have a broader definition of what it means to be intoxicated or what constitutes a vehicle. There are also differences in DUI charges related to the age of the offender and what the legal limit is. Many states have reduced legal limits for young offenders or commercial drivers. Every state also has their own versions of reduced charges like Wet Reckless that could still be interpreted as indictable offenses under Canadian Law.
Because of the complexities of DUI on a State level and how it translates to Canada's Criminal Code, it is always in your best interests to be informed of your exact situation. Whether you have a DUI conviction, a lesser charge on record, have completed a conditional discharge program, or have an arrest on record but the charges were dropped or are awaiting trial, be proactive! Contact our team of Canadian immigration lawyers and Regulated Canadian Immigration Consultants today so that we can help you successfully enter Canada.