Canadian Immigration Crackdown on Foreign DUI Offenders

Posted by admin on March 15th, 2019

As of December 18, 2018, Canada’s Bill C-46 became law, classifying impaired driving offenses as “serious criminality” rather than “simple” within the Immigration and Refugee Protection Act.

So how does the passing of Bill C-46 affect us stateside?

First, we should understand what the Immigration and Refugee Protection Act of Canada is. This is “[a]n Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger.” As such, the act details under what circumstances immigration and refugee status is given to a non-Canadian citizen. Of those details existed Section 36 (1), which states that “a permanent resident or foreign national is deemed inadmissible to Canada if he or she is convicted of an offence that is considered serious criminality.”

Previously, serious criminality included offenses such as murder, aggravated sexual assault and drug trafficking. Now, with this new bill, impaired driving fits in this category. Even offenses such as wet reckless, which are reduced DUI offenses (see What are the Benefits (and Disadvantages) of a Wet Reckless?), are now considered in the serious criminality category.

Not only did the amendment change the categorization of DUIs, it also increased the penalty as well. What was a maximum term of imprisonment of five years is now 10 years. Canadian immigration officials are not pulling any punches.

Having a DUI offense on your record made it slightly inconvenient when travelling to Canada, but now, it can mean that it becomes extremely difficult for you to obtain a work visa in Canada or even to simply visit as a tourist (see Traveling to Canada after a California DUI Conviction).

Many of the same rules apply if you want to visit Canada after you have been convicted of a DUI with this new bill. However, one of the exceptions we mentioned in the previously noted post, is “deemed rehabilitation.” With the new bill, this method is no longer an option for those inadmissible to enter Canada due to a DUI conviction. Leaving only what is called “rehabilitation by application” as a method to entering Canada legally.

You are eligible to apply for rehabilitation if five years has passed from the completion of the sentence and are able to demonstrate that they are no longer a risk for criminal activity. Demonstrating that you are no longer a risk can come from showing a stable lifestyle, community ties, or proof that the offense was an isolated event. Simple, right? Well, the difficulty comes when we start counting the five years. Below are some of the most common sentences and the correct way to calculate the waiting period:

Suspended sentence: Five years from the date of sentencing.

Suspended sentence with a fine: Five years from the date the fine was paid. For any varying payment, the count will start from the date the final payment was paid.

Imprisonment without parole: Five years from the end of the term of imprisonment.

Imprisonment and parole: Five years from the completion of parole.

Probation: Probation is considered to be a part of the sentence. Thus, five years from the end of the probation period.

Driving prohibition: Five years from the end date of the prohibition.

You must also remember that because the new characterization of DUI is more serious than before, the immigration officials will be looking at your application with more scrutiny than they had before. The redefinition will undoubtedly make some of the applications more difficult to accept.

One saving grace is that currently this amendment is only being considered for offenses that happen after its passing. Therefore, if your offense happened before December 18, 2018 then you may be unaffected. For any permanent residents or foreign nationals already living in Canada, the amendment is not grounds for expulsion.

Can an Unconscious Driver Give Consent to have a Blood Alcohol Test?

Posted by Jon Ibanez on March 8th, 2019

The Founding Fathers drafted the Constitution, specifically the first 10 Amendments, mindful that the government could and may at some point in our country’s future subvert our individual rights, such as the right to be free of unreasonable governmental searches and seizures. Specifically, the Fourth Amendment prohibits the government from “unreasonable searches and seizures.” Simply put, if a person has a reasonable expectation of privacy in a particular place, the government cannot search it unless, amongst other things, it has a warrant to do so or if it obtains voluntary consent to the search.

That was then. Mitchell v. Wisconsin is now.

The United States Supreme Court is currently deciding a case that will determine if police can withdraw blood from an unconscious suspected drunk driver without their express consent.

In May of 2013, Gerald Mitchell was arrested on suspicion of driving under the influence of alcohol. While en route to the police station, Mitchell became lethargic and the officers instead took him to a hospital. There, the officers attempted to read Mitchell his rights as well as a statutorily mandated form regarding Wisconsin’s implied consent law. Mitchell, however, was already too close to unconsciousness to understand, if not unconscious already. That didn’t stop the officers. They ordered hospital workers to withdraw blood from Mitchell without his express consent. The blood test revealed a blood alcohol content of 0.22 percent, almost double the legal limit.

Implied consent laws, which exist in every state, declare that every driver, through merely having a government-issued driver’s license and using state-owned roadways, has impliedly agreed to take a blood-alcohol test if arrested on suspicion of driving under the influence.

Mitchell was charged with a DUI (or OWI – operating while intoxicated – as it’s called in Wisconsin). He moved to suppress the results arguing that the officers did not have a warrant and that he did he did not give his express consent. Prosecutors argued that neither a warrant nor express consent were required because of the implied consent law. The trial court sided with the prosecutors and Mitchell was convicted.

Mitchell appealed and the court of appeals certified the case to the Supreme Court of Wisconsin on the issue of “whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law…violates the Fourth Amendment.” The Supreme Court of Wisconsin accepted the certification and upheld Mitchell’s conviction. Earlier this year, however, the United States Supreme Court decided to take on the case.

It couldn’t come at better time either. State court stances on the issue have been all over the place.

Some states have struck down laws that allow prosecution of someone who refuses a blood alcohol test in violation of the implied consent law. Some states have held that warrantless, consentless searches are unconstitutional and, therefore, the evidence obtained by the search is inadmissible against the driver at a DUI trial. Others, like Wisconsin, have held that the Constitution and the Fourth Amendment don’t matter as long as implied consent laws allow law enforcement to search DUI suspects carte blanche.

Let’s take this step by step. The officers in Mitchell’s case do not need a warrant if Mitchell does not have a reasonable expectation of privacy in the place that law enforcement is searching. We’re not talking about Mitchell’s garage. We’re not talking about his car. We’re not even talking about his home. We’re talking about the thing that we as humans consider to be the most private; our body. I’ll even take it a step further and say that we’re talking about a search of the contents of someone’s blood. You damn well better believe that we have a reasonable expectation of privacy in our bodies and our blood.

Since Mitchell had a reasonable expectation of privacy, the Constitution requires that the officers either get a warrant or get Mitchell’s consent. They did not have a warrant nor did Mitchell give consent because he was, for all intents and purposes, unconscious. Yet, they searched and found what they were looking for.

Wisconsin’s Supreme Court, in allowing Mitchell’s blood and blood alcohol content to be used against him in a criminal case, has essentially said that unconscious drivers can give consent, and have already done so.

How? Because the state legislature has subjectively and in contradiction to the Constitution of the United States created a law that gives the government the right to search without a warrant or consent.

The Founding Fathers were right to be wary of the government, clearly. Let’s just hope that the United States Supreme Court decides Mitchell’s issue bearing in mind what the Founding Fathers had intended and what they wrote in the Constitution.

Could DUI Fines be on the Upswing?

Posted by admin on March 6th, 2019

In a previous post, we covered potential costs of a DUI. That was based on our current understanding of California DUI law. However, Mississippi may be a trendsetter to legislatures throughout the country in increasing the fines and fees associated with a DUI arrest and conviction.

The Mississippi House of Representatives just passed House Bill 1445 which would essentially double the fine for DUI violations. The bill, which calls for the increase of the general fund amount for implied consent law violation, also known as driving under the influence, would, according to state assessment, increase the current fine of $243.50 to $493.50. The funding that is raised with the increase in fines would be used to support trauma care in the state.

During the House floor debate on the proposed law, Rep. Greg Haney (R-Gulfport) asked, “Are we doing this to just raise money or is it for safety?” Rep. Donnie Scoggin (R-Ellisville) admitted that it was a little of both.

Scoggin supported this answer with information and a little bit of history about the state’s trauma care system. The state of Mississippi’s statewide trauma care system was instituted in 1998 after the then-Governor Kirk Fordice and Lieutenant Governor Ronnie Musgrove received severe injuries in separate car crashes. According to the state’s Department of Health, as of Nov. 9th, 2018, there were 86 designated and participating hospitals in the Mississippi Trauma System of Care, with the University of Mississippi Medical Center the only Level 1 trauma hospital in the state.

Scoggin says that the fine wouldn’t fully fund trauma care in the state. However, the increase would bring it up to about three-quarters. He further stated that the original trauma funding bill from the mid-1990s actually listed the DUI fee at $500, but was reduced to its current $243.50.

A bill in 2017, had set the amount from the state’s general fund that could be used for the trauma system at $7,023,197 and reduced the overall spending for trauma care from $40 million to $20 million. Scoggin stated that raising the DUI fine for the purpose of supporting trauma care “…seems to be the right place to do this.”

In an attempt to further support the use of DUI fines for trauma care, Rep. Steve Holland (D-Plantersville) mentioned that crashes that are caused by impaired motorists are responsible for several of the trauma cases in the state.

According to the 2017 statistics by Mother Against Drunk Driving, there were 129 drunk driving deaths in the state of Mississippi and that 19 percent of traffic fatalities were connected to driving under the influence.

Although the lawmakers are attempting to tie drunk driving to the funding of trauma care, personally it seems to be contradictory. The raising of funds is important in making sure that severely injured have the best possible care in order to save lives and it makes sense that if raising a fine could help to support that, they should raise it where they can. However, something like a DUI fine is also imposed in order to dissuade people from breaking that law of driving under the influence. If, by raising the fine, it does what it was intended to do, namely to dissuade drivers from getting behind the wheel under the influence, then essentially, the state has less cases to collect the fine. Which in turn, would mean that the actual amount collect by fines is less than what was initially proposed or considered.

Perhaps it is designed to be a temporary remedy to the bigger issue of how to raise more money for the trauma center. Or perhaps the Mississippi legislature just sees an opportunity to collect from an easy target; DUI defendants.

In any event, if the bill is passed in the Senate and signed by the governor, then it would become effective July 1.

How Does a DUI Affect Car Insurance?

Posted by admin on February 28th, 2019

When one gets pulled over and subsequently arrested for an alleged DUI, what are some of the first things that run through their head? “Oh no, I’m in trouble,” “I am going to jail,” “I need a lawyer” are probably a few. However, after the initial shock wears off, that person eventually gets to realizing the potential fines and legal fees that go along a DUI conviction. Those fines and fees are typically a one-time expense. But there is one cost that often gets over looked and is one that affects your life for 10 years after the DUI; car insurance.

In January of 2007, new legislation required that DUI offenses be a part of your public driving record and remain on that record for 10 years from the violation date. The legislation was changed in order to allow car insurance companies access to driving records so that they could apply the new provisions that were added in 2005 in the Insurance Code under Senate Bill 597, primarily dealing with “good driver” discounts. Under the law, good driver discounts would not apply to drivers with DUI offenses within the past 10 years. In other words, because the discount you previously received for being a good driver will not apply, your car insurance premium will go up, at minimum, the amount of that previous discount.

Losing the discount is not the only reason your car insurance premiums may go up. Having a history of DUI suggests to the car insurance company that you are at a higher risk of being in an accident. It’s no surprise that having a higher blood alcohol content will hinder basic motor skills and therefore negatively affect your ability to operate a vehicle, thus leading to a higher chance of being involved in a collision. And having a higher risk of being in an accident means that the insurance company has more to lose with you behind the wheel. The insurance companies are not allowed to cancel your insurance mid-policy due to a DUI conviction, but they will definitely reconsider your premiums when the renewal comes around. As such, your premiums will more than likely go up. Although it will depend on your insurance company, on average, an increase of a few hundred dollars is likely. Some, however, can increase as much as a couple thousand dollars.

Assuming for argument’s sake that your insurance only increases a few hundred dollars, that few hundred dollars might seem doable, but remember, your status as a “high risk” driver stays with you regardless of whether you change insurance companies for 10 years. With that label lasting 10-years, you are looking at a quite a few thousand dollars of a difference in total. Now, imagine what it would be if the increase is more than a few hundred dollars.

If you are convicted of a DUI, you may want to shop around for car insurance. With this new dent in your record, there may be other policies that won’t make as much of a dent in your wallet.

It may seem like a lot of work, and more money than someone might want to dish out for a DUI, but taking the time to research a good DUI lawyer will also probably be worth it. If the right circumstances are aligned in your case, your lawyer may be able to get your DUI charge down to a “wet reckless” (See the post What are the Benefits (and Disadvantages) of a Wet Reckless? for details on wet reckless). One of the advantages of being able to reduce your DUI to a charge of wet reckless is that the conviction will stay on your record for only seven years, rather than the 10 years that a DUI conviction requires. Obviously, it would depend on your car insurance, but the additional cost of paying for a good DUI lawyer, may outweigh the cost of paying an additional three years of increased premiums.

Suffice it to say, that extra six-dollar beer is not worth the few thousand dollar increase in insurance premiums that a DUI conviction will bring with it, or all of the time and research you will have to put into finding yourself a good lawyer, or the time and research in possibly finding new insurance to make sure you are able to keep your premium increase to a minimum.

North Dakota Bill Outlawing DUI Checkpoint Passes House

Posted by Jon Ibanez on February 21st, 2019

Just take a look at last week’s post. According to statistics obtained by Insurify, an auto insurance comparison website, North Dakota was ranked as the worst state when it came to drunk drivers. 5.73% of people who responded to a questionnaire from Insurify indicated that they had a history of DUI. 24.7% of people reported drinking excessively. What’s more, nearly half of all fatal traffic collisions in the state involved alcohol.

Now, to some, this can be interpreted to suggest that North Dakota might need additional DUI enforcement and preventative measures such as DUI checkpoints. However, to others, like the North Dakota House of Representatives, the numbers are an indication that DUI checkpoints, as currently deployed, are not working in that state and maybe, just maybe, state funds should be allocated elsewhere.

North Dakota House Bill 1442, which would prohibit the use of DUI checkpoints in the state, was passed by a whopping majority of 79-14. It’s now headed to the state Senate for consideration.

While the Highway Patrol is not taking a stance on the issue, Fargo Police Chief David Todd and Cass County Sheriff Jesse Jahner oppose the legislation arguing that DUI checkpoints are tools necessary for law enforcement to stop and prevent drunk driving.

The bill’s primary sponsor, Rep. Rick Becker, however, claims that the argument that DUI checkpoints are an effective tool in combating DUI’s is “cliched” and have been “proven inadequate.” There’s something to be said about Beckner’s argument.

Between January 2017 and December 2018, the Highway Patrol conducted 16 DUI checkpoints in North Dakota, which only resulted in 17 DUI arrests. Only 17. This is a drop in the bucket compared to the 1,135 DUI arrests made in 2017 and the 1,158 DUI arrests made in 2018 by the Highway Patrol.

The ACLU of North Dakota issued the following statement regarding House Bill 1445:

“The ACLU of North Dakota supports House Bill 1442. Our constitutional right under the Fourth Amendment to live free of ‘unreasonable searches and seizures’ is one of our most cherished – and most threatened. While traditional Fourth Amendment violations continue, new areas of concern crop us every day. We need to ensure that the Fourth Amendment, written over 200 years ago to protect our ‘persons, houses, papers, and effects’ from intrusive searches, evolves to protect today’s equivalents.”

The ACLU is alluding to the fact that the courts have in the past allowed law enforcement a freebie in stopping motorists (which under the law is a “detention”) without the normally-required probable cause and/or warrant when it comes to DUI checkpoints. The courts have continued to justify this exception to the constitution by claiming that the admitted invasion of privacy of the driver by law enforcement is outweighed by law enforcement’s interest is preventing drunk driving.

Matt Agorist, columnist for freedomoutpost.com, writing on this very topic said it best: “To those who would say, ‘if you are not doing anything wrong, you should have nothing to hide,” and support these checkpoints, you are the problem. Families do not draw the curtains in their homes at night because they are doing something wrong. One does not lock the bathroom door in public because they are doing something wrong. It is about maintaining, asserting, and protecting your rights – without being forced to lose your privacy.”