After being charged with a DUI in the United States, not all individuals are able to get a conditional discharge sentence, which does not result in a conviction. Having a DUI conviction on a criminal record can cause a number of problems for an individual, including difficulty getting jobs and criminal inadmissibility to Canada.
For individuals with a DUI conviction, there are certain options that will allow for a person to have their criminal record permanently erased, which would resolve the problem of inadmissibility to Canada. This procedure is called expungement, and the majority of US States have some sort of expungement process. When a person is granted an expungement of their record, the record of their conviction is sealed and the conviction is essentially deemed not to exist. After your record has been expunged, there is no obligation to disclose the conviction to potential employers and you can honestly answer “no” when asked if you have ever been convicted of a crime.
The laws governing expungement procedures in each state vary considerably. Some states do not allow for DUI convictions to be expunged, and others do not allow expungements for any crime. To learn about the opportunities to expunge DUIs in your state, consult the map and detailed state descriptions below!
Alabama:In Alabama, while acquittals and dismissed charges typically have the option of expungement, there is currently no provision that allows for the expungement of convictions. In April 2014 the Alabama Senate passed a law that would allow for misdemeanours and certain non-violent felonies to be expunged, but the bill has not yet been signed into law. If the bill is signed and becomes state law, DUIs would likely be permitted to be expunged.
Alaska: The State of Alaska unfortunately does not have statutes that outline the process for expungement for any criminal conviction, including DUIs. Unlike many other states, even DUI charges as a minor remain permanently on a person’s criminal record. Alaska has very strict expungement procedures which generally only allow record expungements in cases where the criminal record is inaccurate, as in cases where a person was convicted based on mistaken identity.
Arizona: While Arizona does not have expungement procedures, they do have a similar option where a person can have their conviction “set aside.” DUI charges are eligible to have a conviction set aside. After a conviction has been set aside, the original conviction still remains on the criminal record but a note is added stating that the charge was dismissed. Individuals who were sentenced to incarceration are required to wait a two year period before petitioning the court to have the conviction set aside.
Arkansas: Almost all misdemeanours can be expunged in Arkansas, although some offenses are subject to certain waiting periods before they become eligible for expungement. A new state law passed in 2011 gives individuals convicted of a DUI the chance to expunge the conviction from their record, which was previously unavailable. Arkansas does not have an absolute right to an expungement, so there is a possibility that a DUI expungement could be rejected if the court finds clear and convincing evidence that the offense should not be expunged. Rejecting a request for DUI expungement is generally rare, as the burden of proof for the court’s reason for rejection is very high.
California: DUI convictions are eligible for expungement in California after the completion of the offender’s entire sentence and provided there are no other charges pending against the individual. With a Calfornia expungement, the individual withdraws the original plea, the guilty verdict is set aside, and the criminal record will be edited to state that the charged was “dismissed per P.C. 1203.4,” the statute governing this process. There is no waiting period for DUI expungement, so individuals become eligible as soon as they complete the entirety of their probation or sentence.
***In California, expungement does not remove inadmissibility to Canada. You must still disclose the expungement to the Canadian government.***
Colorado: Individuals convicted of DUIs in Colorado have very limited options for overcoming their offense. Colorado does not allow for adult criminal records to be expunged for any crime, including DUIs. Colorado does have a procedure to seal criminal records for individuals who were acquitted or had their charges dismissed, but this is incredibly difficult if the person plead guilty. DUI convictions are completely ineligible for sealing records.
Connecticut: In Connecticut, convictions cannot generally be expunged. Only individuals who were acquitted, had their charges expunged, or had their case put on hold will be able to get an expungement for the DUI on their record.
Delaware: The expungement procedures in Delaware are more complicated than in many other states, as the process is divided into Mandatory Expungement and Discretionary Expungement. Mandatory Expungement is not an option for individuals charged with operating a vessel or boat while intoxicated. Discretionary Expungement could be an option for individuals charged with DUIs in Delaware, but it requires a number of steps to become eligible. To qualify for Discretionary Expungement with a conviction, a person must first apply for a pardon. While a pardon can be applied for as soon as the sentence is completed, applicants see the greatest chances of success if they wait 3-5 years before applying for a pardon. Once the pardon is granted, the individual can then apply for and be granted Discretionary Expungement, but it can be difficult to demonstrate convincingly why your record needs to be expunged.
Florida: In Florida, expungement tends only to be a possibility for individuals who were acquitted of their charges, had their charges dismissed, or entered a deferred adjudication program. Deferred adjudication tends not be available for DUI offenses in Florida, so it is generally not possible for a DUI record to be expunged in this state.
Georgia: The state of Georgia does not have expungements available at all, regardless of whether the person has been convicted of the offense or not. Even a person acquitted of a crime cannot have their record expunged. A new state law introduced in July of 2013 did create a procedure for “record restriction,” which seals criminal records, but this option is not available for a person who has been convicted of a DUI.
Hawaii: Like many other states, Hawaii does not allow for the expungement of any criminal conviction. Individuals can apply for a pardon for their conviction, but this will not erase the conviction from a criminal record.
Idaho: Idaho offers expungement services for both juveniles and adults and for both aquittals and convictions, which is not common among the states. Being granted an expungement is relatively easy for individuals who were acquitted or had their charges dismissed, but it can be more difficult for an individual who was convicted of a DUI to be granted an expungement. Only individuals who are first time offenders and were convicted of a relatively minor offense are usually permitted to have their record expunged.
Illinois: DUI convictions are not eligible for expungement in Illinois. The only possibility for individuals who were convicted of a DUI would be being granted a pardon that specifically authorizes expungement, which is nearly impossible to obtain.
Indiana: Indiana recently passed a new law in 2013, dubbed the “second chance law,” that makes it possible to expunge convictions. The new law sets out a waiting period of 5 years for misdemeanours and 8-10 years for non-serious felony expungements. Individuals can only expunge their criminal record once, and certain crimes (including sex crimes and violent offender crimes) are ineligible. Individuals with DUI convictions are generally eligible for expungement in Indiana.
Iowa: In Iowa, alcohol related crimes are eligible for expungement (such as minor in possession of alcohol charges) after a two year waiting period, but DUI convictions have been made eligible for expungement. If a person was granted deferred judgement for their DUI then expungement may be possible.
Kansas: Kansas DUI convictions are eligible for expungement, and a new state law currently being reviewed in 2014 could reduce the amount of time a person needs to wait in order to have their conviction expunged. Currently, individuals with a DUI conviction are required to wait 10 years for expungement, but if the bill passes the new wait time will only require 5 years after the completion of the sentence.
Kentucky: In Kentucky, misdemeanours can be expunged in cases where the person requesting expungement has no previous felony convictions and has not been convicted of any other crime during the required 5 year waiting period after the completion of their sentence. While there are some restrictions on which offenses can qualify, DUI convictions are eligible.
Louisiana: The Louisiana statutes are somewhat ambiguous when it comes to expungement, so it can be difficult to determine eligibility. Louisiana has two separate statutes that govern expungements. The regular expungement law, section 44:9, is not available for DUI convictions. DUIs can be expunged under another section, but only if the original plea was entered under that section as well, which would have prevented the original conviction from being entered into your record. In this case, the conviction never existed in the first place so it is much easier to have the arrest and charge expunged.
Maine: In Maine, the expungement of a DUI for a first time offender may be possible if the offender can fulfill certain conditions, such as completing an alcohol education program. DUI expungement is at the discretion of the judge.
Maryland: Maryland only allows expungements in cases where the person was acquitted, the charges were dismissed, or if a probation before entry of judgment sentence was imposed. This means that any person convicted of a DUI is ineligible for expungement. Individuals who have a DUI and were granted a probation before entry of judgment are also excluded by statute.
Massachusetts: In Massachusetts, DUIs cannot be expunged. It is possible for a DUI conviction to be sealed if a person waits 10 years from the completion of their sentence and can prove they completed the entirety of their court ordered probation.
Michigan: An individual with a DUI conviction in Michigan will be barred from both having their record set aside and from having their record expunged. In recent years, amendments to the expungement laws have been discussed but no legislative changes have been enacted as of yet.
Minnesota: While Minnesota does have provisions outlining expungements, they are generally only available for individuals who have been acquitted or had their charges dismissed. Some convictions are eligible for expungement, such as minor posession of controlled substances charges, but it is nearly impossible to be granted an expungement for a DUI.
Mississippi: A new bill signed into law by the Mississippi governor in April of 2013 now allows for the expungement of DUI convictions. If all of the conditions of the sentence were met, if the person’s blood alcohol level was below 0.16 and they did not refuse a breathalyzer test, and if there are no other DUI charges pending or convictions at the time of the application, a DUI conviction can be expunged. These changes take effect on July 1, 2014.
Missouri: Missouri expungement is available to anyone for whom ten years have passed since the completion of the sentence for their DUI conviction and who have not been subject another DUI conviction during the waiting period. Missouri DUI expungement can only be used once.
Montana: Montana formerly offered expungement for DUI convictions, but now only individuals who had their charges dismissed or their conviction overturned can qualify for expungement.
Nebraska: The state of Nebraska does not allow individuals with a DUI conviction to have their record expunged, as expungement is not available for anyone who was convicted of a misdemeanour or felony, even when the person was granted a pardon.
Nevada: In Nevada, DUI convictions cannot be expunged. It is possible to have a DUI conviction sealed after a certain period of time, but unlike an expungement, sealing the record does not result in the conviction being deemed to have never happened.
New Hampshire: In New Hampshire, both DUI convictions and Aggravated DUI convictions can be expunged after 10 years have passed from the date of the conviction. As in California, an expungement will not remove the conviction from the criminal record, but it will add a note to conviction which says it has been annulled.
New Jersey: In New Jersey, a DUI is considered a traffic offense and not a criminal offense. As expungement is a procedure for criminal offenses, a DUI cannot be expunged because it does not exist on a criminal record.
New Mexico: Generally, DUIs and any other offenses for which there is a record of disposition are not eligible for expungement in New Mexico. A recent court case found that expungements for convictions will not be granted without demonstrating extraordinary circumstances, as in the case of constitutional violations or wrongful convictions.
New York: New York state does not allow expungements for DUIs or for any other offense.
North Carolina: North Carolina does allow for the expungement of most misdemeanours and non-violent felonies, including DUIs. DUI convictions become eligible for expungement after a waiting period of 15 years after the completion of the sentence. It is only available to first time offenders.
North Dakota: Expungements in North Dakota are not generally available for individuals who plead guilty or were convicted of a crime. They are only available for very specific offenses, such as possession of less than one gram of marijuana. DUI convictions are ineligible.
Ohio: DUI convictions can never be expunged in Ohio, even in the case of a first time offender despite the fact that most other first time offenses are eligible for expungement. Prior to a new law passed in 2012, DUI convictions also prevented individuals from having any other conviction on their record expunged as well. The 2012 law changed this practice, and while DUIs are still ineligible, a DUI conviction no longer precludes a person from having other parts of their record expunged.
Oklahoma: DUIs are expungable in Oklahoma both in cases where the individual was granted deferred adjudication and where an individual was convicted. First offense DUI convictions are eligible for expungement if 10 years have passed since the completion of the sentence and the individual has no other charges or convictions from that period.
Oregon: Both DUI convictions and DUI charges that were dismissed after the successful completion of a diversion program are not eligible to be expunged.
Pennsylvania: In Pennsylvania, expungement is permited for individuals who were charged with a summary offense and have not been charged with any other crime during the 5 year waiting period. Individuals who had their DUI charge dismissed through the Accelerated Rehabilitative Disposition program can also have their DUI charge expunged relatively easily.
Rhode Island: In Rhode Island, any first time DUI offender who has been convicted is eligible for their criminal record to be expunged. Individuals convicted of a misdemeanour are required to wait 5 years and individuals convicted of a felony are required to wait 10 years before their criminal record can be expunged.
South Carolina: In South Carolina, expungement does existed by DUIs are ineligible due to an expungement restriction on all traffic offenses and motor vehicle offenses.
South Dakota: First time offenders who were convicted of a misdemeanour DUI are eligible to have the conviction expunged from their criminal record after a ten year waiting period. DUIs are eligible but the expungement will require the person undergoing an alcohol evaluation.
Tennessee: While Tennessee passed a new law in 2012 that granted the priviledge of expungement to most misdemeanours and Class E felonies, DUI convictions are an exception and are not eligible for expungement.
Texas: In Texas, DUI convictions cannot be expunged for any reason. Expungement in Texas is only available in cases where a person was acquitted, the charges were dismissed, if the case is reduced to a Class C misdemeanour, or if the individual was granted a pardon for the offense.
Utah: DUIs in Utah are eligible for expungement after a 10 year waiting period. To have a DUI expunged in Utah, the individual will need to demonstrate that their expungement is not contrary to the public interest. Having other convictions on your criminal record could restrict the ability to grant an expungement, as there are a number of provisions barring individuals with certain amounts or types of offenses from expunging their record.
Vermont: While Vermont does have a robust expungement program, DUIs are ineligible. All misdemeanours other than DUIs qualify for the conviction to be expunged in Vermont.
Virginia: Virginia does not allow for convictions of any type to be expunged. Expungement is only available in cases where the individual was acquitted, the case was dismissed, the offender was granted a pardon, or the conviction occured as a result of identity theft. DUI convictions can never be expunged.
Washington: Most offenses in Washington state are eligible for expungement if three years have passed since the completion of the sentence and no other charges or convictions have been filed. DUIs are an exception to this rule and are ineligible for expungement.
West Virginia: West Viriginia statutes outline a significant number of exclusions to the state’s expungement laws, and DUI convictions are listed as a case where expungement is unavailable.
Wisconsin: In the past, Wisconsin DUIs would be automatically expunged after 10 years in cases where the driver’s blood alcohol level was between 0.08 and 0.99 and if they were not charged with any other alcohol related offenses during the waiting period. A new law in 2010 eliminated this option, leaving no circumstance where a DUI can be expunged in Wisconsin.
Wyoming: Many dismeanour convictions in Wyoming can go through the expungement process if 5 years have passed since the completion of the sentence and there are no other convictions on a person’s record. Convictions that involve a firearm are not eligible for expungement. Felony DUIs are also ineligible.
A sealed record is considered a criminal record for the purposes of IRPA. Having a sealed record itself does not in and of itself constitute inadmissibility, however, an officer will question the person concerned to determine the circumstances of the sealed record. A sealed record is usually a process used for young offenders. In such cases, it would most likely equate to an offence under the Young Offenders Act, which does not render one inadmissible to Canada. Sealed records can also be used after an agreement between the prosecutor and the defendant, or in security cases. For example, if a person abides by terms and conditions imposed by the court, their record may be sealed in Vermont. The record cannot be made public without a court order, however, will appear on a person’s “rap sheet.”
Suspended Sentences and Inadmissibility?
Even though your sentence is suspended, usually contingent on successfully completing probation, you still had to have pleaded guilty of the offence, and this makes you inadmissible to Canada. The moment there is a “guilty” or “convicted” offence on your record, you are rendered inadmissible to Canada and will require additional steps to be able to visit the country. These steps could include a TRP or Criminal Rehabilitation.
DISCLAIMER: Please note that the information provided on this page is for information purposes only and does not constitute legal advice. As the information on this page is also subject to change, FWCanada recommends consulting the most updated version of your state statutes or speaking with an attorney in your state. Each case is different, and individuals who have been convicted of a DUI and are seeking to have the conviction expunged should always consult an attorney to provide advice specific to their unique situation.
FWCanada is a Montreal-based immigration law firm that provides professional legal services on Canadian immigration. For more tips and updates on Canadian immigration follow FWCanada on Facebook, Twitter, and Linkedin.