Canadian Immigration Crackdown on Foreign DUI Offenders

Friday, 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.

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Could DUI Fines be on the Upswing?

Wednesday, 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.

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Supreme Court to Decide if Cops Can Draw Blood from Unconscious Driver

Tuesday, January 22nd, 2019

The United States Supreme Court has agreed to hear and decide a case that challenges a Wisconsin law that allows law enforcement to withdraw blood from an unconscious driver that they suspect was driving under the influence.

The case stems from the 2013 arrest of Gerald Mitchell in Sheboygan County, Wisconsin. After receiving reports that the driver of a gray van may have been intoxicated, officer Alex Jaeger pulled Mitchell over. A pre-arrest breathalyzer revealed that Mitchell had a blood alcohol content of 0.24 percent, three times the legal limit. Officer Jaeger then arrested Mitchell and drove him to a hospital to withdraw a blood sample.

By the time Mitchell and officer Jaeger had arrived at the hospital, Mitchell had lost consciousness and could not be woken. While at the hospital, Mitchell appeared to be too intoxicated to answer questions from a blood-withdrawal consent form. Notwithstanding his unconscious state, blood was taken from Mitchell without a warrant and without his expressed consent.

The blood test revealed that Mitchell’s blood alcohol content was 0.22 percent.

At trial, Mitchell challenged the results arguing that the warrantless blood withdrawal amounted to an unreasonable search and seizure in violation of the 4th Amendment. Mitchell’s suppression motion, however, was denied and the jury convicted him of driving under the influence.

The Wisconsin Supreme Court took up the case to address whether implied consent under “implied consent laws” (laws that require a person to submit to a breath or a blood test if they are legally allowed to drive and if law enforcement has probable cause to believe a person is driving under the influence) is constitutionally sufficient to allow a blood withdraw without expressed consent while a driver is unconscious.

The Wisconsin Supreme Court held that, by virtue of Mitchell’s mere possession of a driver’s license, Mitchell had already impliedly provided consent to allow law enforcement to withdraw blood if law enforcement had the probable cause to arrest him on suspicion of driving under the influence. To boot, the court concluded that officer Jaeger had the probable cause to arrest Mitchell on suspicion of driving under the influence, and therefore law enforcement could withdraw blood from Mitchell while he was unconscious.

In its opinion, the court stated, “…we conclude that consent given by drivers whose conduct falls within the parameters of [Wisconsin’s Implied Consent law], is constitutionally sufficient consent to withstand Fourth Amendment scrutiny…” Furthermore, the court concluded that Mitchell, having consumed alcohol to the point of unconsciousness, “…forfeited all opportunity, including the statutory opportunity…to withdraw his consent previously given; and therefore, [Wisconsin’s Implied Consent law] applied, which under the totality of circumstances reasonably permitted drawing Mitchell’s blood. Accordingly, we affirm Mitchell’s convictions.”

The United States Supreme Court is set to hear Mitchell’s case and it could be decided by late June of this year.

In 2016, the United States Supreme Court ruled that it was lawful for states to impose penalties for drunk driving suspects who refused to take a breath test under the state’s Implied Consent law. However, the Court went on to conclude that while their “prior opinions have referred approvingly to the general concept of implied consent laws,” that “there must be a limit to the consequences to which motorists may be deemed to have consented to only those conditions that are ‘reasonable’ in that they have a ‘nexus’ to the privilege of driving.” Thus, Implied Consent laws that punish people who refuse a blood test are too intrusive and, therefore, unconstitutional.

“[If] criminal penalties for refusal are unlawful because they too heavily burden the exercise of the Fourth Amendment right to refuse a blood test, can it really be that the state can outright abolish the very same right?” Mitchell’s attorneys asked.

Mitchell’s attorney’s question is a valid and one that I hope the Court concludes the answer is “no.”

 

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New Canadian DUI Law: Police can Breathalyze in Homes, Bars, and Restaurants

Tuesday, January 15th, 2019

I know I complain a lot about the DUI laws here in California. There is much improvement to be made with regard to how law enforcement enforces drunk driving laws and how prosecutors prosecute drunk driving laws. Having said all that, at least we’re not in Canada.

Section 253 of the Criminal Code of Canada was effectively changed in December of 2018 which gave law enforcement the authority to seek breath samples from people who might have been driving under the influence of alcohol.

Here in California, an officer must have probable cause that a person was under the influence before they could arrest them on suspicion of a DUI. Only then was a person required to provide either a breath or a blood sample. Prior to that arrest, any breath sample provided was voluntary on behalf of the driver.

Under Canada’s new law, police officers no longer need to have “reasonable suspicion” that a person had consumed alcohol to force that person to take a breathalyzer. Police could demand breath samples from people at their home, in a bar, or at a restaurant. If the person refuses, they could be arrested and charged, and if convicted, can face a fine and a driving suspension.

Notwithstanding the potential to arrest a person who was not driving under the influence of alcohol, but rather lawfully drinking in their home or elsewhere, supporters of the law point to the use of another “tool” in combating drunk driving.

“Police miss a lot of impaired drivers,” said Toronto police spokesman Sgt. Brett Moore. “It’s just a really good, strong message that there’s a real high likelihood that if you get stopped by police, you’re going to get asked to submit to a breath test.”

Not surprisingly, Mothers Against Drunk Driving Canada also supports the new law asserting that mandatory alcohol screening will make the roads safer.

Don’t get me wrong, I too support making roads safer, but not at the risk of arresting, charging, and punishing people for doing something perfectly lawful. I’m not the only one.

“It’s ridiculous, it’s basically criminalizing you having a drink at your kitchen table,” Paul Doroshenko, a Vancouver criminal defense lawyer who specializes in impaired driving cases, told Global News. “If you start to drink after you get home, the police show up at your door, they can arrest you, detain you, take you back to the (police station) and you can be convicted because your blood alcohol concentration was over 80 milligrams (per 100 millilitres of blood) in the two hours after you drove.”

The Canadian Civil Liberties Association also expressed concern about Canada’s new law saying that mandatory alcohol testing will disproportionally affect racial minorities who might be unfairly targeted by law enforcement.

Notwithstanding its problems, Minister of Justice and Attorney General Jody Wilson-Raylould believes that the law with withstand judicial scrutiny when it is challenged in court and is in support of the new law.

“Impaired driving is the leading criminal cause of death and injury in Canada,” said Wilson-Raybould in December. “I believe these reforms will result in fewer road deaths and fewer Canadian families devastated by the effects of an impaired driver. This is one of the most significant changes to the laws related to impaired driving in more than 40 years and is another way that we are modernizing the criminal justice system.”

It could take years for legal challenges to make their way through Canada’s appeal courts and even the Supreme Court of Canada. Until then, people, all people in Canada, are subject to a law that could find them in legal trouble even though they’ve done nothing wrong.

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Stricter DUI Law Trend Across the U.S.

Monday, January 7th, 2019

Each state has their own traffic laws and has their own driving under the influence laws. Some are stricter than others. That said, until this year, all states have set the blood-alcohol (BAC) level of 0.08 as the per se standard of driving under the influence. DUI law in every state is much more complicated than simply having a BAC limit (see recent article California DUI Law 101, for a recap on DUI law in California), although it is an important number to remember. One state, however, has made the leap to lower the allowed BAC level, making it the strictest in the country. If you are knowledgeable about the history of anti-drunk driving laws in the U.S., you may not be surprised to hear that that state is Utah, which has in the past been a trailblazer for stricter DUI laws in the country.

Utah was the first state to lower the BAC limit from 0.1 to 0.08 back in 1983, and now in 2019, it will be the first state to lower the BAC limit from 0.08 to 0.05. Utah has put this new limit to effect on December 30, right before the New Year festivities. Although the BAC level will change, the punishments for being convicted of a DUI will not. In Utah, that includes suspended licenses and fines over $1,000. Those in favor of the new limit feel that this new lower BAC level will help to deter drivers from drinking before getting behind the wheel. However, this lower limit also means that law enforcement will be casting a wider net and many more people could have their licenses suspended with thousands of dollars in fines, and possibly other penalties. Unlike California, Utah does not have a policy for restricted licenses, which means that in areas with few public transit options, even first-time offenders will have a difficult time adjusting to the penalties of a first-time DUI in Utah.

Although the idea that a lower BAC limit will help to deter those who have had a few alcoholic drinks from getting behind the wheel is well-intentioned, and though there are many state lawmakers who hope that other states will soon follow in Utah’s footsteps, there are still many details that should be addressed in order to ensure that a lower BAC limit law does not unfairly overreach to people who might be sober.

Utah is not the only state to be making changes. Pennsylvania passed legislation in October that took effect on December 23, that created the state’s first felony DUI. Until now, Pennsylvania was one of four states in the U.S. that did not consider elevating a DUI to a felony after multiple DUI convictions. Now with the new law in effect, a third time offender of driving under the influence with a BAC level of 0.16 (twice the legal limit in Pennsylvania) can be charged with a felony. The new law will also consider a fourth DUI offense or higher, with any BAC level or intoxicating substance presence, as a felony.

The new Pennsylvania law also increased the penalties for homicide by vehicle while driving under the influence, increased jail time for DUI’s where there was a prior DUI, and increased the fines and fees for a DUI. In addition, the penalty amount for driving under suspension has been increased. What was previously a minimum $500 fine and up to 60 days in jail for a second offense is now a mandatory minimum of 90 days in jail and a fine of $1,000, with a third offense to resulting with six months in jail and a mandatory $2,500 fine.     

Considering that a majority of the states have already put in place the felony categorization for a DUI following multiple offenses, Pennsylvania is late in the game. However, Pennsylvania had been seeing an annual number of approximately 10,000 alcohol-related crashes and around 300 fatalities. With one source citing about 250,000 repeat DUI offenders in the state, it is no wonder Pennsylvania turned to the trend of stricter DUI laws.

Hopefully enforcement of these new laws will help to promote a safer driving environment for all, but not at the cost of arresting sober people on suspicion of a DUI.

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