Sponsoring Husband with a 0.058 DUI

[leighlee]

Hello! I have found a few threads about various situations with DUI's, but I have not found anything about non-criminal DUI's. My husband got a 0.058 BAC DUI in 2011. Maybe a year prior to his dui, 0.05 was not even considered a dui. But in 2011 (I believe) it became a summary offense. So, my question is, even though it was not a criminal dui, is he still inadmissable to Canada?

 

[Mariac819]

I found this. I hope it helps.

http://www.cic.gc.ca/english/infORmation/inadmissibility/index.asp

 

[Mariac819]

"If you have been convicted of driving while impaired by alcohol or drugs, you will probably be found criminally inadmissible to Canada. But as of March 1, 2012, you may be able to get a temporary resident permit for one visit without paying the C$200 processing fee. "

http://www.cic.gc.ca/english/helpcentre/answer.asp?q=143&t=8

 

[leighlee]

Hmmmm....doesn't look too good. Thank you very much for the info!

 

[Alurra71]

Hello! I have found a few threads about various situations with DUI's, but I have not found anything about non-criminal DUI's. My husband got a 0.058 BAC DUI in 2011. Maybe a year prior to his dui, 0.05 was not even considered a dui. But in 2011 (I believe) it became a summary offense. So, my question is, even though it was not a criminal dui, is he still inadmissable to Canada?

DUI is a criminal offense in Canada, regardless of how another country treats it.

Your husband will have to wait, at a minimum of 5 years from the time he has completed whatever sentence was imposed upon him. After the 5 year mark, he is then eligible to be sponsored and will need to file the necessary paperwork for his DUI for him to be considered 'rehabilitated'.

Good luck.

 

[bartjones]

DUI is a criminal offense in Canada, regardless of how another country treats it.

Your husband will have to wait, at a minimum of 5 years from the time he has completed whatever sentence was imposed upon him. After the 5 year mark, he is then eligible to be sponsored and will need to file the necessary paperwork for his DUI for him to be considered 'rehabilitated'.

Good luck.

I'm not sure that is necessarily true. In Canada the legal BAC limit is .08. The OP's husband has some sort of conviction for DUI but his BAC was 0.058, which would not constitute a crime in Canada. I think the OP may be okay.

My advice to the OP would be to report it on the application and provide the court/police records which show his BAC. You can argue that the offence he was convicted of in the foreign jurisdiction has no equivalent in Canadian law. CIC can sort it out from there.

The OP may want to look at this http://www.canadainternational.gc.ca/australia-australie/visas/rehabilitation-readaptation.aspx?lang=eng

And in particular the part where they say this.

I have original paperwork to show that my actual blood alcohol reading for my drink driving conviction was 0.080% or less. Can I enter Canada as a visitor?

Yes, provided the conviction or traffic infringement notice was not for Impaired Driving, a drink driving offence alone with a blood alcohol reading 0.08% exactly or below will not make you inadmissible. You may proceed to Canada.

 

[scylla]

I'm not sure that is necessarily true. In Canada the legal BAC limit is .08. The OP's husband has some sort of conviction for DUI but his BAC was 0.058, which would not constitute a crime in Canada. I think the OP may be okay.

My advice to the OP would be to report it on the application and provide the court/police records which show his BAC. You can argue that the offence he was convicted of in the foreign jurisdiction has no equivalent in Canadian law. CIC can sort it out from there.

The OP may want to look at this http://www.canadainternational.gc.ca/australia-australie/visas/rehabilitation-readaptation.aspx?lang=eng

And in particular the part where they say this.

This is the right answer.

 

[leighlee]

That is what I was hoping!! 0.05 is now an offense in Canada, but it is a summary offense, like a misdemeanor. We included all his paperwork for the charge, which included a form saying exactly what his punishment was, how far he drove, and his BAC. Thank you very much for your help!

I will definitely post back here when we get our results, for people who may find themselves in a similar situation.

 

[bartjones]

That is what I was hoping!! 0.05 is now an offense in Canada, but it is a summary offense, like a misdemeanor. We included all his paperwork for the charge, which included a form saying exactly what his punishment was, how far he drove, and his BAC. Thank you very much for your help!

I will definitely post back here when we get our results, for people who may find themselves in a similar situation.

Driving with a .05 BAC is not a criminal offence in Canada (either summary or indictable) and therefore doesn't render you inadmissible. You should be fine.

 

[Ponga]

Driving with a .05 BAC is not a criminal offence in Canada (either summary or indictable) and therefore doesn't render you inadmissible. You should be fine.

I believe that it is in B.C.

 

[scylla]

I believe that it is in B.C.

No - not just BC - the entire country. The criminal code is not province specific.

 

[leighlee]

In my research, I found a site (wish I could find it now) that says that an offense that could be considered either a misdemeanor or criminal, would be considered criminal for immigration. I don't know if this applies to a 0.05 dui. I'm hoping it's considered a separate offense. I think the post I read was maybe related more to a charge where you can plea for a lesser sentence or something. I really have zero experience with anything like that. We already sent our application anyway, so I guess we'll find out!

In all of Canada (except Saskatchewan, where it is 0.04 BAC), anything 0.05 or over is a summary offense, or misdemeanor. The same law is in South Korea. It's relatively new in Canada, though. I think sometime in the last 3 years. Basically, right around the time my husband got his 0.058.

I think we will be left to the mercy of our individual immigration officer on this one.......

Your posts have been very helpful! I am glad to see that it is actually as confusing as I thought it was lol

 

[bartjones]

In my research, I found a site (wish I could find it now) that says that an offense that could be considered either a misdemeanor or criminal, would be considered criminal for immigration. I don't know if this applies to a 0.05 dui. I'm hoping it's considered a separate offense. I think the post I read was maybe related more to a charge where you can plea for a lesser sentence or something. I really have zero experience with anything like that. We already sent our application anyway, so I guess we'll find out!

In all of Canada (except Saskatchewan, where it is 0.04 BAC), anything 0.05 or over is a summary offense, or misdemeanor. The same law is in South Korea. It's relatively new in Canada, though. I think sometime in the last 3 years. Basically, right around the time my husband got his 0.058.

I think we will be left to the mercy of our individual immigration officer on this one.......

Your posts have been very helpful! I am glad to see that it is actually as confusing as I thought it was lol

Actually it's fairly simple. In Canada you are only going to be inadmissible for immigration purposes if you have a conviction in a foreign jurisdiction for an offence that would also be an offence under an Act of the federal parliament of Canada. In Canada the federal offence for drunk driving is contained in the Criminal Code and it stipulates that your BAC must be .08 or higher.

Most provinces in Canada have also passed their own laws which allow the police to suspend your license, seize your vehicle etc, and creating offences if your BAC is at least .05. These are not "summary" or "misdemeanors". They are not criminal offences and they are not new. They are provincial offences. A conviction for a provincial offence or it's foreign equivalent cannot render you inadmissible to Canada for immigration purposes.

Some countries, like South Korea, have made driving with a BAC of .05 a criminal offence. In those cases PR applicants with foreign DUIs under .08 will have a problem because when they submit their criminal background checks to CIC, a conviction for DUI will appear on the search result. CIC will then request the court documents underlying the foreign conviction in order to determine, among other things, what the applicant's BAC was at the time they were stopped. If their BAC was less than .08, they are still admissible because in Canada that is not an offence under an Act of the federal parliament of Canada i.e. it is not a criminal offence.

Was your husband's conviction from South Korea? If so I can give you a little more advice. My South Korean wife also had a DUI, so I've been through the process already.

 

[leighlee]

Wow! Thank you so much! Yes, the DUI was in South Korea. Any advice you have would be amazing! Thank you =)

 

[bartjones]

Wow! Thank you so much! Yes, the DUI was in South Korea. Any advice you have would be amazing! Thank you =)

If you haven't already done so, you should contact the court office in Korea where his conviction was processed and obtain the "Summary Order" and "Criminal Fact" regarding the conviction. Have those translated and notarized and forward them to Manila ASAP because sooner or later, they are going to request those two documents. By doing it now you will save yourselves several months delay in your processing time

I would also send a short email or letter to the VO pointing out that his BAC was below .08 and that, accordingly, there is no equivalent criminal offence in Canada that would render him inadmissible. An experienced visa officer will already know this, but your email will at least force whoever is dealing with your file to address their mind to the equivalency issue and not just dismiss your application due to the Korean criminal conviction. Good luck.