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DWI and the Consequences at the Canadian Border

Being a criminal defense firm located in Central New York, we are often asked by client’s who routinely cross the Canadian border whether a potential alcohol related driving conviction will prevent them from entering Canada. Unfortunately, in most cases the answer is ‘Yes’. While DWI laws in New York are some of the toughest in the United States, Canada takes an even harsher stance on drunk driving. A drunk driving conviction in New York will, in fact, prevent you from entering Canada for at least five years unless you are granted some type of exception by the Canadian government.

Contrasting Drunk Driving Law between New York and Canada

It is not uncommon for first time New York DWI defendants to be allowed to plead guilty to the lesser offense of DWAI (Driving While Ability Impaired), barring other aggravating facts of the case. A guilty plea to DWAI has several significant advantages over that of being convicted of the misdemeanor of Driving While Intoxicated. Most importantly, DWAI is not deemed a criminal offense under New York law. Whereas a first-time DWI is a misdemeanor in New York, DWAI is deemed a violation, meaning that a conviction for DWAI does not result in a criminal record.

In Canada, DWI is deemed to be a more serious crime from the start. A first time DWI arrest in Canada is an indictable offense (essentially, the equivalent to a felony in New York) even in cases without an accident or injuries to other people. This tough approach carries over to those who seek entry into Canada for either personal leisure or business-related travel. Simply put, whether you are convicted of DWI or DWAI in New York, it is deemed a crime in Canada and you will not be allowed to enter the country.

Resolving Criminal Inadmissibility to Canada

What can someone convicted of DWI or DWAI do to obtain permission to enter Canada? While there are three options to seek legal entry after an alcohol related driving conviction, each is very time consuming, very expensive and anything but guaranteed.

Once five years has elapsed from your drunk driving conviction, you may apply to the Canadian Border Service for Criminal Rehabilitation. Criminal Rehabilitation requires a person to submit a lengthy application in order to demonstrate that they have rehabilitated in the time since their conviction, that they are not likely to offend again and that they maintained good citizenship since their conviction. The application process can cost thousands of dollars, can take well over a year and is completely discretionary for Canadian authorities as to whether it is granted or not.

If fewer than five years has elapsed since the drunk driving conviction, Criminal Rehabilitation is not an option. The only remedy at this point is to seek a Temporary Resident Permit. If granted, a Temporary Resident Permit is good for one year and allows a person entry into Canada only if they can demonstrate that they are not a threat to Canadian security and is granted only in emergency situations such as mandatory employment travel that will benefit the country or family emergencies. The process for applying for Temporary Resident status is also very expensive and can take around six months, usually requiring a personal interview with Canadian authorities.

Finally, certain minor offenses result in a presumption of Deemed Rehabilitation after ten years. This Deemed Rehabilitation is only available for minor offenses. Indictable offenses (including New York DWI or DWAI convictions) are not eligible for Deemed Rehabilitation. A DWAI conviction will always require that you apply for Temporary Resident status or complete the Criminal Rehabilitation process, regardless of how much time has passed since your conviction.

If you or somebody you know is charged with DWI and need the ability to travel to Canada, it is crucial that your lawyer know not only the intricacies of DWI law in New York, but also the consequences at the border. At Team Green Lawyers our team of former prosecutors know the law and know how to best resolve your charges to limit the effects on your ability to travel to Canada. Call us today for a free consultation.