With respect to the above discussion, I won’t get into a discussion of the merits of points raised or of the fact situation, but I will make a comment with respect to seeking legal advice.
Lawyers, like any other professional group, have individuals who focus almost their entire work in very limited areas of legal practice. This area is no different. Given the significance of the potential adverse consequences to one’s career, if one ever faces the scenario set out at the beginning of this thread, in my view, one would be well advised to seek out the advice of a professional who is not only highly skilled but highly experienced in that specific area of the law, even if that means having to spend more money than one might have originally anticipated.
I will offer some general comments on the relevant legal framework in issue here, from my experience and practical knowledge of the law in these matters.
There are two separate legal schemes used in Canada with respect to alcohol limits and operating vehicles (aircraft, cars, boats etc.).
By far the more significant is the
Criminal Code provision. A
Criminal Code conviction leaves one with a criminal record that goes into the CPIC system (and will likely stay there forever, with few limited exceptions) and will show up when you give an employer consent to submit to a criminal record check prior to employment. To my understanding, Canada shares a great deal of criminal information with the USA, so most likely the conviction will be registered in the USA system.
I don’t believe that it would be wise to assume that a potential employer will not learn of a conviction, so full disclosure, transparency and forthrightness is likely the better option.
A few years ago I had a client with a criminal record who was planning to make a trip into the USA. I made inquiries with the U.S. Customs and Immigration Branch on the person’s behalf prior to the individual’s planned trip. I asked if the specific criminal record in issue in that case would automatically prevent the individual from entering the USA. Answer: No. Only “crimes of moral turpitude” result in absolute denial (Wikipedia provides an extensive listing
https://en.wikipedia.org/wiki/Moral_turpitude.
Nevertheless, there is a great deal of discretion on the part of the border personnel. An otherwise clean record and a considerable passage of time since the conviction is treated quite favourably, but a simple DUI conviction does not unduly raise concerns, to my understanding.
The second scheme in place, in use in B.C., for example, is the Immediate Roadside Prohibition (“IRP”) scheme. If you are stopped and requested to produce a breath sample, you are provided no
Charter of Rights advice (i.e. you do not have a right to seek the advice of counsel prior to giving the breath sample(s)). If you blow a WARN or a FAIL, there is an immediate impoundment of the vehicle (even if it is not your vehicle) and an immediate forfeiture of your driver licence. Apparently a reading of 0.06 to 0.10 gives the WARN result and a reading of over 0.10 gives the FAIL result (the extra 0.01 to 0.02 for 0.05 and 0.08 limits is apparently intended to provide a margin for potential device error). The screening device does not specify a numerical readout.
Immediate driving prohibition and impoundment of your vehicle results from either a WARN or a FAIL reading, but no legal proceeding is initiated under the
Criminal Code, so the penalties are
administrative, not
criminal and one does not wind up with a criminal record as a result. However, the penalties are significant.
A FAIL reading results in a 30-day impoundment of the vehicle (towing and storage charges can be expected to be over $800), there is a 90-day suspension of licence and a $500 fine. Further, the Minister has the ability to force the individual to take a remediation course (cost, about $800) and to participate in the Ignition Interlock System (install a breath recorder in your vehicle for one year, prohibit you from driving any vehicle without the interlock system installed, give the system periodic breath samples such as prior to turning on the ignition, download the results to their web site, then pay for its removal at the end of the year—cost, about $1,700). Total: almost $4,000. The IRP stays on your driving record forever, but only the previous five years of your driving record is available live, to the police.
Notwithstanding the IRP program, the police still have the option of requiring you to give a breath sample on the certified equipment (in their mobile unit, or at the police station), should they choose to do so—i.e. they may opt to proceed by way of the
Criminal Code procedure, should they deem it appropriate (such as after an accident, especially one causing bodily injury or death).
As with other endeavors, avoiding getting into such a problem situation is obviously far, far less troublesome and less expensive than extricating oneself from it afterwards. Remember the old adage, the superior pilot is one who exercises his or her superior knowledge to selectively avoid situations requiring the use of his or her superior skill.
