Can You Visit Canada While in a DUI Diversion Program?

If a person has no criminal history, then depending on the exact circumstances of their DUI incident they may be given the opportunity to participate in a pretrial diversion program or deferred prosecution program. These programs are typically run by a police department, district attorney's office, court, or an outside agency, and often have names such as "First Offenders Diversion Program" (FODP) or "DUI Pretrial Diversion". The main purpose of a DUI diversion or deferral program is to allow a person to avoid a permanent criminal conviction provided they clean up their act and complete the various requirements of the program. These obligations can include paying a fine, community service hours, installing an Ignition Interlock Device (IID), attending a drug safety action program or alcohol treatment program, or making a cost reimbursement to the arresting law enforcement agency. While many US states do not offer diversion to anyone charged with driving impaired, diversion programs are commonly available to first-time offenders in a few jurisdictions such as Oregon, Florida, Georgia, Kansas, and Nebraska.

When it comes to crossing the Canadian border with a DUI that has been diverted or deferred, until a person has finished the entire diversion or deferment program and has documents showing the final result he or she can be considered criminally inadmissible to Canada and denied entry. Even if there was no admission of guilt required to participate in the program, the Canadian border will be able to see the original drunk driving arrest and can assume guilt without documents showing a "no conviction" result. Similar to individuals who have been arrested for a DUI but are awaiting trial, while participating in a DUI diversion program or deferred adjudication program a criminally inadmissible person must be issued a Temporary Resident Permit (TRP) to avoid the risk of being denied entry by Canada. Even if all the pretrial diversion requirements have been satisfied other than probation, an American with a DWI arrest can still be refused admittance and sent home upon landing at a Canadian airport.

In general, a diversion or deferred prosecution agreement (DPA) is a great alternative to a criminal conviction, but it is important to understand that they do not necessarily make traveling internationally any easier until after a person has completely finished and has documentation proving a favorable "no conviction" result. Until this point in time, since there is no presumption of innocence for the purposes of traveling to Canada, being enrolled in a diversion or deferred judgment program can essentially be treated the exact same at the Canadian border as a standard drunk driving conviction. Consequently, an American going through diversion may be criminally inadmissible to Canada and denied entry without a Temporary Resident Permit.

Even after a person has graduated from a DWI diversion program, it can be a good idea for them to have an immigration attorney prepare a Legal Opinion Letter explaining to officials at the Canadian border why the individual is now admissible to enter the country despite an impaired driving arrest appearing on their criminal record. In some cases, such as non-convictions that involved a finding of guilt or a guilty plea, Canada may still treat the offense similar to a conviction and require the person to obtain special entrance permission. If a person refused a breathalyzer or a roadside sobriety test, or had their license revoked by the DMV (or other administrative penalty due to the offense), determining admissibility to Canada after diversion can be particularly complicated.

A Legal Opinion Letter from a Canadian immigration lawyer is advisable for any business traveler with a criminal history but no convictions who wants to help ensure they never have issues entering the country. Even if your reason for travel is leisure, if you have invested a lot of money in a trip to Canada a Legal Opinion Letter could be a smart move if you have a dismissed DUI charge in your past. A DWI is a serious crime north of the border that can result in a prison sentence of up to ten years, so any arrest related to impaired driving can cause genuine concern at the Canadian border.

Want to visit Canada during or after a DUI diversion program? Contact our legal team now for a free consultation.

Why Am I Still Inadmissible?

In the United States, you are considered innocent until proven guilty in the court of law. Being permitted entry into a foreign country such as Canada is a privilege not a right, however, and consequently as soon as immigration officials notice that a visitor has an arrest record they are free to deny that person entrance even though they have not yet been convicted of the crime in their home country. For this reason, even if you did not need to plead guilty in order to begin your DUI deferment or pretrial diversion program, you may still be considered criminally inadmissible to Canada until you have fully completed the process or have been issued a TRP. For example, an American enrolled in an Oregon DUII diversion program could be refused admittance by Canadian border agents if he or she has not completed all requirements including probation.

Some deferred judgment DUI programs take years to finish, so if you just started such a process and will need to travel north of the border any time soon you may require a Temporary Resident Permit to avoid being refused entry by border security. Contacting our law office is a great way to get honest answers to any questions you have about visiting Canada after going through diversion for a misdemeanor DUI.