Even Misdemeanor Convictions Might Prevent Entry Into Canada.

Criminal convictions, including convictions for driving under the influence, typical bring with them all sort of collateral consequences.  For instance, there are often mandatory driver licenses suspensions, limitations on the right to possess a firearm, suspensions of professional licenses, and restrictions on ability to travel to foreign nations.  One typical collateral consequence is the inability to enter Canada.  Sadly, too often a client finds out about this restriction after traveling to the border for a family vacation or camping trip only to be turned away.  Here are just some of the basics of travel restrictions to Canada with a criminal conviction.

The U.S. Department of Homeland Security indicates at https://help.cbp.gov/app/answers/detail/a_id/402/~/entering-the-u.s.-and-canada-with-dui-offenses:

 “Can I enter Canada and the U.S. if I have a DUI on my record?

As a general rule, Canada does not allow persons with DUI's to enter their country, although travelers who require in-depth information regarding the process of applying for a waiver or other admissibility questions can reach the Canada Border Services Agency (CBSA) during regular business hours, Monday to Friday (08:00 - 16:00 local time, except holidays) by calling either (506)636-5064 or (204)983-3500.”

Here is what Department of Citizenship and Immigration in Canada reports at http://www.cic.gc.ca/english/helpcentre/answer.asp?q=143&t=8:

“What is the new policy on criminal inadmissibility?

Normally, if you have been convicted of an offence, such as mischief or driving under the influence, you cannot enter Canada without a permit that has a processing fee of C$200.

However, as of March 1, 2012, you may be able to get a temporary resident permit for one visit without having to pay the C$200 processing fee if you:

•have served no jail time, and

•have committed no other acts that would prevent you from entering Canada.”

Some offenders can overcome criminal inadmissibility if you satisfy the conditions at http://www.cic.gc.ca/english/helpcentre/answer.asp?q=142&t=8:

“•satisfy an immigration or border services officer that you meet the legal requirements to be deemed rehabilitated;

•apply for individual rehabilitation and get approved; or
•receive a pardon or record suspension.

You may also be offered a temporary resident permit if:

•your reason to travel to Canada is considered justified in the circumstances; and
•you do not pose a risk because of your inadmissibility.

Visits considered justified could include family emergencies or business conferences. Pleasure trips are normally not considered justified in the circumstances.”

As to other waivers to enter Canada, it reports at http://www.cic.gc.ca/english/helpcentre/answer.asp?q=145&t=8:

“What types of convictions are eligible for the fee waiver to enter Canada?

Eligible convictions include those equivalent to criminal offences under the Immigration and Refugee Protection Act, Section 36(2). However, convictions for child pornography or any sexual offence are not included.

The equivalent convictions vary from country to country. Among others, they include:

•driving under the influence of alcohol;

•public mischief; or
•shoplifting.

All serious criminal offences, defined under Section 36(1) of the Immigration and Refugee Protection Act, are not eligible. Among others, they include:

•robbery;

•fraud over C$5000; or
•assault causing bodily harm.”

Often when considering strategies related to a criminal defense matter, the focus at the time is avoiding incarceration and fines.  The gravity is so overwhelming that collateral consequences seem less significant.  Once the criminal matter is behind you, one is confronted head on with the long term effects of a criminal conviction.  Be mindful of these effects in advance and you will be make better informed decisions.

Court Says: Intoxilyzer 8000 Vulnerable.

If you haven’t heard, the Ohio Department of Health approved the Intoxilyzer 8000 and the state of Ohio then purchased 700 of the instruments.  Now it seems maybe the state should have waited for an analysis as was done by the Athens County Municipal Court in State v. Gerome, Trial Court Case Number 11TRC01909.  Therein the trial court heard arguments in four consolidated OVI cases which involved the use of the new – some say untested – Intoxilyzer 8000.  

After an extensive evidentiary hearing including multiple expert witnesses for both the prosecution and the state, the court concluded that “The Intoxilyzer 8000 has vulnerabilities.  With specific fact situations, defense expert testimony is admissible to explain such relevant vulnerability.”  This is significant as the trial court had to have a meaningful understanding of the Ohio Supreme Court’s decision in State v. Vega; and thereafter demonstrate the very real distinction.  In Vega, the Ohio Supreme Court held, in general terms, that a defendant cannot challenge the general principles that underlie breath testing instruments.  This created a very real problem for those charged with a DUI/OVI offense in Ohio in that Ohio also had per se DUI/OVI violations which makes a high testing reading alone a criminal violation.  

With the introduction of the Intoxilyzer 8000, the real problem with Vega was immediately apparent.  The prosecution would rely on the Vega opinion to argue that the defense was not permitted to challenge the new instrument.  The Athens County Trial Judge thought different and allowed the pre-trial evidentiary hearing on the machine.

Thankfully he did.  After a full evidentiary hearing with experts witnesses for both the prosecution and the defense, the trial court specifically found that “[d]efendant has presented evidence of several vulnerabilities [of the Intoxilyzer 800] and the Court understands and accepts two and possibly three as material to admissibility and to guilt.”   In short, the Court found:

1.       That the machine remained vulnerable to radio frequency interference which is a danger even more prevalent now than it was when the breath technology came into common use.

2.       That the machine allows the operator to manipulate the breath sample which is a danger in that “the longer you blow, the higher your score.”  The court cited an example that “on average, a shorter duration sample could show a 0.68 and a longer duration sample could show a 0.85 with the same alcohol content.”

3.       The machine has a reduced capacity to detect a sample that includes moisture.  This is critical in that the theory with the technology is that it tests “deep lung air rather than air from the mouth or other moist tissues that would include liquid ethanol at a higher concentration than breath.”

The trial court’s decision is just that, namely a trial court decision in one municipal court in the entire state of Ohio.   But the court’s analysis was remarkable, especially as it was based on an evidentiary hearing which included highly regarded expert witnesses on both sides of the matter.  It’s value as persuasive authority cannot be ignored.