There are many names for a DUI. But whichever you choose you should know that it is the most commonly pardoned criminal conviction in Canada. The chances are good that you will be familiar with at least one or two of them. But whatever you want to call it the charge is the same and it involves operation of a motor vehicle while intoxicated by alcohol or drugs or anything else that impairs your judgement or dexterity.

It could even just be cough medicine because if you are driving under the influence of anything you are breaking the law.

If you are arrested for a DUI you will be charged under section 235 of the criminal code.

For more information:
http://laws-lois.justice.gc.ca/eng/acts/C-46/section-253.html

DUI Pardon in Canada

In Canada a DUI arrest is taken very seriously. In our experience it is almost unheard of to be found not guilty of a DUI.

Interestingly the first arrest for a Canadian citizen for driving under the influence of alcohol goes all the way back to 1920 in the case of R. v. Nickle. Although in this case the detais appear to be more serious that simply driving drunk since it was established that the act of driving intoxicated would support a manslaughter conviction.

For more information:
http://allontario.ca/2013/05/curious-facts-from-traffic-history/

The most recent legislative change to the law concerning impaired driving was passed in 2008 as a part of the Tackling Violent Crime Act.

http://www.parl.gc.ca/HousePublications/Publication.aspx?Docid=3320180&file=4

Alcohol Limits for a DUI Charge

Generally speaking a blood alcohol limit of .08 is the threshold where a DUI arrest will be made. However, if the subject being tested is close to the limit, but not over, the police have various options regarding enforcement. Those options vary from province to province.

Going to Court for an impaired Charge in Canada

In our experience it is extremely uncommon to be ground not guilty of a DUI charge in Canada. One of the things that makes it such a difficult charge to fight is that – by definition – you were impaired and therefore any testimony you provide immediately lacks credibility. This makes sense. A sober police officer performing his or her job while administering a breathalyser test has a lot more credibility than a drunk person charged with operating a motor vehicle. If you are charged for a DUI in Canada do not expect to be found not guilty. Although it’s certainly possible, it is highly unlikely.

Sentencing for a drunk driving charge

• For a first offence, a $1000 fine and a 12-month driving prohibition,
• For a second offence, 30 days of jail and a 24-month driving prohibition, and
• For a third or subsequent offence, 120 days of jail and a 36-month driving prohibition.

From province to province there are slight variations on the sentencing involved for a DUI charge in Canada but the above is a good general guideline. The most common element is that a DUI conviction in Canada will certainly result in 1 year license suspension following your first conviction as well as a fine.

For more information:
https://en.wikipedia.org/wiki/Impaired_driving_in_Canada#Proving_blood_alcohol_concentration

Does a DUI show up on a background check in Canada?

Whenever you are convicted of a crime in Canada the record will show up during any background check. Even if you are not found guilty there are records of the arrest that can easily be viewed by employers and other interested parties.

If you have a DUI conviction – or even i you have only been arrested for a DUI but not found guilty – you should apply to have your record removed.

Non conviction

If you were not convicted following a drunk driving arrest you should apply for a purge and file destruction.

Conviction

If you were convicted for your arrest you need to apply for a pardon.

Getting a pardon or file destruction for a Drunk driving charge

If you think you will want to eventually obtain a pardon for your DUI charge the first thing you should do after being convicted is pay your fine. For the purpose of your pardon the sentence being considered will almost invariably be the fine you receive provided there was no jail time involved.

For whatever reason, the license suspension is not considered a part of the sentence during the pardon application. So it is conceivable that you could have your criminal record sealed but never bother getting your license back.

If you decide to apply for a pardon for a DUI charge you will want to make sure you have no traffic violations of any kind during the eligibility waiting periods as they can be used against you during the review process. But provided you meet the eligibility criteria and you satisfy the good conduct clause you will be able to seal your criminal record and remove that DUI charge once and for all.

Most driving offences – like speeding or making an illegal turn – are not criminal and, therefore, will not go on your criminal record. But impaired driving can be considered sufficiently serious to warrant a criminal conviction, especially if the driver has a blood alcohol level over 0.08.

These offences happen for lots of different reasons and this partly has to do with the fact that alcohol affects people in very different ways. Many of our clients say they didn’t feel drunk at all. Most were surprised when they failed the breathalyser test. But none were able to convince the police officer that it made any difference.

We also hear stories from people who say they remember getting drunk, but don’t remember getting in the car. But most cases fall somewhere between the two extremes. Usually the offenders know they’re too drunk to drive but risk it anyway because they need to get home.

If you’re convicted

Most impaired driving charges are dealt with summarily by the courts and the usual sentence is a fine and a suspended license. You will be able to apply for a pardon five years after you’ve paid your fine because the license suspension is not considered part of your sentence for the purposes of a pardon. So pay your fines as soon as possible to avoid delays getting your record cleared.

It’s possible for a DUI to lead to an indictment that comes with a heavier sentence but this is normally reserved for repeat offenders. It would also be common in cases where the offence was especially serious because it caused injury or involved further criminal activity like trying to evade the police.

DUI Charge in Canada and the United States Border

Interestingly the one charge that we normally consider fairly serious in Canada will not get you banned from the United States. We have many people who come to us requesting a US entry waiver for a DUI charge and we are forced to turn them away. Why? Because for some reason the United States does not consider DUI to be a crime of moral turpitude.

While I happen to disagree my thoughts on the matter are irrelevant in respect to United States law. So if you have a single DUI charge you most likely will not be refused entry when crossing the border.

On the other hand there is no guarantee that you will not be refused entry. We have several clients who were turned away who have nothing more on their record than a DUI. We don’t know exactly why that happened but it’s possible the border guard could see that the individual had been arrested, but could not see the nature of the offence. In a case like that I believe that most border guards would err on the side of caution.

Our suggest if you are travelling to the United States and there is a DUI on your record is to always travel with court documents or some other kind of proof of conviction. This way you can prove the nature of the offence in the event that the border guard believes there is reason to refuse you entry.

Remember – Driving Under the Influence of Drugs or Alcohol is Illegal

Every driver knows that driving drunk is illegal but somehow DUI remains one of the most common charges we deal with. In addition there are related offences that many people may be unaware of.

1. Refusing a breathalyser – Refusing to provide a breath sample is a criminal offence and will result in the same penalty as an impaired driving charge. If a police officer asks you to do a roadside breathalyser test, you have no choice but to do it. If you refuse, you will be charged with a crime.
2. Care or Control – Another related offence is known as “care or control.” This happens when someone is intoxicated and the police find them in their vehicle, but not driving. Often this happens because the offender is leaving the bar / party and realizes they’re too drunk to drive so they decide to sleep it off in the car. This seems like a sensible idea but it’s very common for the person to wake up, feel sober and drive home not realizing that they are still over the legal limit.
3. Drunk Driving by Proxy – This one is a bit unusual but it did happen to one of our clients. A client of ours was in the passenger seat of her car when the driver – who was sober – left the vehicle running to buy something at a convenience store. Because the passenger was intoxicated and the keys were still in the ignition, she was charged. Most people wouldn’t imagine that this would constitute a criminal offence, but it does.

It’s also worth bearing in mind that impaired driving doesn’t have to involve alcohol. You can be convicted of this offence if you’re impaired by a drug – even a legal prescription drug – to the extent that it’s dangerous for you to be driving a vehicle.

Further, impaired driving doesn’t even have to involve a car or truck. According to the law, it can involve a train, plane, a boat, a motorbike, a regular bike a tractor or even horse-drawn buggy. Basically if its a vehicle you have to personally operate you have to be sober to do it.

If you have been convicted of any of these offences you will need to apply for a record suspension to have the record removed. Your conviction will never go away on its own.

If you are unsure how to proceed please get in touch with one of our counsellors. And We’re here to help.

Michael Ashby

p.s if you’ve ever wondered if drinking and driving really isn’t all that bad please read my editorial in the Montreal Gazette. It might just save you a few headaches.

The Consequences of a DUI Arrest