Immigration Canada - PanCanadian Immigration Law Group

Refusal to Provide Breathalyser Sample

Discussion in 'Criminal Charges and Convictions' started by slingshot_fuel, Dec 24, 2013.

  1. slingshot_fuel

    slingshot_fuel New Member

    I was arrested and charged pursuant to Section 254(2)(b) of the Criminal Code in British Columbia in August 2009. I retained counsel and the following was the final outcome:

    "Count 1, plead not guilty as charged, but plead or was found guilty of the lesser, included or other offence did commit an offence of driving without reasonable consideration, contrary to section 144(1)(b) of the Motor Vehicle Act."

    As the above indicates, I do NOT have a criminal record. My question relates to travel to the United States and the ESTA Application necessary to be eligible for the Visa Waiver Program.

    One of the questions on the ESTA application states: "Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or have been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or have been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?"

    Based on the seemingly intentional ambiguous language of the above ESTA question, what is the correct way of answering this question respecting my situation?

    Firstly, the "or" between "convicted" and "arrested" clearly indicates that I would have to answer "yes" to the question. However, "moral turpitude" is a rather subjective legal term and I am unsure how my particular case would relate. Yes, I was arrested. No, I was not convicted of the offence for which I was arrested. Yes, I was found guilty of a charge under the Motor Vehicle Act (not criminal). Is "refusal to provide a breathalyser sample" a crime of "moral turpitude"? I understand that "driving while impaired" and/or providing a breathalyser sample that is above the legal limit MAY constitute a crime of "moral turpitude", however, I was arrested for refusing to do so.

    Any advice/help would be much appreciated and I kindly thank any responders in advance!

    -Tim

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