from BORDERS: Thoughts of a Cross-Border Advisor (16 Oct 2012) -- "Driving Under the Influence and Cross-Border Planning"

By John Flecke, JD, CFP® posted 06-19-2013 08:42


Driving under the influence (DUI), driving under intense influence (DUII), driving while intoxicated (DWI), operating under the influence (OUI), operating while intoxicated (OWI), or operating a motor vehicle while intoxicated (OMVI): Whatever the local jurisdication calls it, a conviction involving driving and alcohol may cause immigration headaches long after the party is over. Contrary to what one might expect, Canada is tougher than the US.

A single DUI conviction is NOT a ground for excluding one from entry to the US as a visitor, as a new green card holder, or in any other category for that matter. Multiple DUI convictions or another kind of conviction in combination with a DUI may render an applicant inadmissible to the US—though the applicant for entry may apply for a waiver and waivers are often granted.

Not so in Canada. From the US Customs and Border Protection website, "As a general rule, Canada does not allow persons with DUIs to enter their country…Canada does offer waivers. They are not routinely granted."

Canadian Waivers

Rehabilitation is a permanent waiver of inadmissibility available five years after committing the crime.

Deemed rehabilitation is available for single and relatively minor offense (e.g., one DUI) ten years after committing the crime.

Temporary resident permit is in effect a temporary waiver available without waiting five or ten years. It is typically granted when the reason for the entry is important enough to trump the crime.

Guess which waiver President George W. Bush applied for in order to attend a Summit Meeting in Canada?

When contemplating a cross-border move, note that Canadian citizens must be allowed to reenter Canada. However, their non-Canadian citizen spouses, step-parents, etc. certainly can be barred—and a US DUI would certainly be an aggravating factor in determining eligibility for Canadian naturalization. That is not to say that US citizen family members with DUIs are SOL (simply out of luck), but the issue needs to be addressed early in planning a move to Canada. 

This is another example of why comprehensive planning is so important to a cross-border move. If a client's Canadian and US tax advisors, estate planning attorney, and immigration attorney are not talking to each other--and they are not asking the client the right questions--issues fall between the cracks and bad things start to happen when a family member is barred from Canada or the US for DUI...

  • Delay or cancel the move or temporarily live apart
  • Change business, retirement, or employment plans 
  • Reverse completed elements of the cross-border tax strategy (e.g., asset transfers, changes in trustees and beneficiaries, etc.), if possible, to avoid unintended income tax consequences 
  • Delay or cancel modifications to the family estate plan 
  • Delay, cancel, or modify financial commitments made in anticipation of the move 

Above we identified issues associated with crossing the border with a DUI record. Attempting to cross the border while intoxicated presents a different set of issues beyond the scope of this post but not beyond comprehension. I can't make this stuff up.