Can You Travel to Canada with DWAI?

DWAI, short for driving while ability impaired, is considered a lower-level offense than DWI or DUI but is treated almost the exact same under Canadian immigration law. For this reason, anyone who has a DWAI may be criminally inadmissible to Canada and denied entry at the border unless he or she has been issued special access. There are two ways to receive permission from the Canadian Government to cross the border with a New York or Colorado DWAI. A Canada Temporary Resident Permit can enable a person to overcome their criminal inadmissibility on a short term basis, while Criminal Rehabilitation allows someone to fix the problem permanently. A Temporary Resident Permit, also called a Canada TRP, can be good for up to three years (several entries) or for as little as one day (single entry) and requires a valid reason for travel. Criminal Rehabilitation (CR) can grant an American with a DWAI life-long access to Canada, but is only available to individuals who have completed all sentencing (including probation) more than five years ago.

If you have a DWAI and wish to cross the border, phone our Canadian immigration law firm now for a free consultation.

It is fairly common for a first offense impaired driving charge in Colorado or New York state to be pled down to a DWAI. Even though a DWAI is a misdemeanor in Colorado and a traffic violation in New York (not a criminal conviction), they are both visible to Canadian border officials and both can equate to a full DUI in Canada which is a serious crime. As of December 2018, impaired driving is considered serious criminality under Canadian law and such an offense can now be punished by up to ten years imprisonment. Consequently, a single DWAI can now render an American criminally inadmissible to Canada for life putting them at significant risk of a border denial forever.

New York DWAI

In New York state, anyone operating a motor vehicle with a blood alcohol concentration (BAC) above 0.08 may be charged with driving while intoxicated or DWI. Anyone operating a motor vehicle while impaired but with a blood alcohol content (BAC) between 0.05 and 0.08 may be charged with driving while ability impaired. Even though a first-time DWAI violation is not criminal in New York, the Canadian equivalent is typically still a hybrid offense with the potential to be indictable, and it can therefore render a person ineligible to cross the border without a Canada TRP or CR. An infraction and not a crime, a NY DWAI is a violation according to New York Vehicle and Traffic Law (VTL) 1192.1. A first offense DWAI in New York often involves a fine of $500 - $2000, as well as a license suspension for 90 days.

Many Americans do not understand why a DWAI from NY State bans them from going to Canada since it is only considered a traffic ticket, and they have a clean record otherwise. According to Canada's Immigration and Refugee Protection Act (IRPA) section 36, which is their part of their border rules, a foreign national can be considered criminally inadmissible due to "committing an act outside Canada that is an offense" and equates to a potentially serious crime in Canada. No conviction is needed. Consequently, even though it is not a misdemeanor conviction an American with a Driving While Ability Impaired infraction from NY can still be denied entry by Canadian border authorities. The Government of Canada also has access to New York State driving records in addition to seeing arrest records via the FBI database, so a NY DWAI can cause a visitor to get flagged immediately upon arriving at border security.

Colorado DWAI

In the state of Colorado, if a driver is impaired "to the slightest degree" and a blood or breath test result is .05% to .08% they will likely get a DWAI charge. If the breathalyzer result is above .08 the driver will frequently get a full blown DUI. In Colorado, if a person's BAC was below 0.08% and there is zero indication of drug use, the DMV will typically not revoke their driver's license. A DWAI is defined in Colorado Revised Statutes (CRS) 42-4-130(1), and penalties for subsequent convictions can include up to 180 days imprisonment.

If you have a D.W.A.I. or driving while ability impaired violation on your record, crossing the Canadian border can result in you being denied entry. Canada has full access to American criminal and motor vehicle databases, and they can often see your DWAI arrest as soon as it happens. Even if you are awaiting trial and have not yet received a DWAI violation, you may not be permitted entry into Canada after the initial arrest occurs unless you have special permission or can prove a favorable court ruling.

Deemed Rehabilitation

Before December 2018, an American with a single DWAI in New York state or Colorado could often get back into Canada simply by waiting long enough. If a visitor could prove to border agents that it had been more than ten years since fines were paid and all other sentencing fully satisfied, he or she was typically considered "deemed rehabilitated by virtue of time" and allowed back into the country without requiring a TRP or Criminal Rehabilitation. The laws changed on December 18th of 2018, however, and now intoxicated driving is considered too serious a crime to be eligible for automatic Deemed Rehabilitation. This is because you can now get up to a decade in jail if caught driving while impaired in Canada. Consequently, you can now be refused entry at the Canadian border because of a single DWAI infraction regardless of how much time has passed.

If an American has a single DWAI that occurred before Canada changed their laws, it may be possible to claim "grandfathered" Deemed Rehabilitation if they have no other criminal history and sentencing was finished more than ten years ago. It is advisable to always consult with a Canadian immigration lawyer before attempting to enter Canada with an old DWAI civil infraction, however, as enforcement has drastically increased at the border and if you do not meet all the eligibility criteria you could be refused admittance. Automatic rehabilitation is based on the date of full completion of all sentencing related to the DWAI (such as payment of any fines and participation in any court-mandated classes or programs), not the date of the actual incident. Consequently, if you hope to be permitted entry into the country through grandfathering you will need to make sure absolutely everything related to your impaired driving violation was done more than ten years ago.

If you have a DWAI or other alcohol-related driving infringement and need to go to Canada, contact our team today.