Help please...minor convictions 20 years ago

[foxmum]

Hi all,

Am getting myself very worked up. My husband who is 40 was a bit of a hoon when he first got his car licence and had multiple speeding, careless driving charges and one .05 charge. AT 20 he was convicted of malicious damage (pushing over white posts on the sign of the road on the way home from the pub). He has never had another conviction, only ever had fines as sentences, and is now a respectable father of 7 with a very good job in the Australian Public Service. We have planned a holiday to the states in November, have paid $11000 for airfares as I believed that 'spent' convictions were not taken into account with visas and international travel. However, reading these forums it appears I am wrong. What should he do - tick no on esta site indicating no criminal convictions, if he ticks yes what are his chances of getting a visa? How do we find out exactly what his charges/convictions were way back then? HELP HELP HELP

 

[serfty]

You can apply for a police report to find out what the US authorities would see. See thread links below.

Personally I would not risk an $11K holiday over this.

My recommendations is to spend the money and apply for a Visa for your husband though the USA authorities.

 

[foxmum]

Is that the same as a National Police Check which we have had done and because they are spent convictions, it comes up blank?

Also do you believe that this convictions would make him ineligible for entry??

 

[serfty]

The conviction as posted would (under the laws of the USA) make your husband ineligible for entry under the "Visa waiver program"/ESTA. Given the blank police check, it is likely that he could answer no to the relevant questions on the ESTA and be permitted entry with no further ado.

However, as I posted, I would not risk an $11K holiday over this and would spend the money to apply for a Visa for your husband.

Given what you have posted it is quite possible the application will be accepted outright.

However, it may still be denied due to criminal history. It would not finish there as your husband would then apply for a waiver which would very likely be approved.

If you get a waiver, you get a temporary visa (up to 12 months).

http://www.frequentflyer.com.au/com...-customs/visa-waiver-program-to-usa-6431.html

http://www.frequentflyer.com.au/com...s/us-visa-question-regarding-court-21114.html

http://www.frequentflyer.com.au/com...waiver-program-question-14757.html#post193042

http://www.frequentflyer.com.au/com.../criminal-record-obtaining-us-visa-15468.html

 

[rwatts]

Be aware that the results provided in a police records check depends on several factors. One is the nature of the offence and another is the purpose of the offence.

As an example, when obtaining a National Police Check from the Australian Federal Police for employment by a Commonwealth department (Purpose Code 30) then only unspent offences are returned. If the check is for employment with access to SECRET or TOP SECRET material (Code 31) then ALL offences are returned.

Other examples are fairly intuitive - a check to be an ACT firefighter will return unspent convictions plus any arson, etc. offences.

The AFP application form at http://www.afp.gov.au/~/media/afp/pdf/n/national-police-check-application-form.ashx is quite informative.

I guess the moral is that you don't actually know what the US may find out through cooperation agreements so as previously advised: play safe, get a visa, and don't risk ruining an expensive holiday or worse. It probably wont be the nature of the offence that concerns them but the fact that the person has lied to them.

Richard.

 

[Maca44]

As the procedure/s sometimes take a while to complete (an your intended trip is November) I would make an appointment with the US Embassy now for a few weeks away, apply for the Police check and take it with you to the interview. There there are many posters here that have been successful with their applications under similar circumstances.

 

[foxmum]

Thank you all for your quick replies...I am feeling slightly more confident now.

Excuse my ignorance, but are you suggesting that I should
1. Not even attempt esta application
2. Apply for a National Police Check through AFP under the immigration section which would show spent convictions - if nothing shows on this is it safe to assume that he has no convictions (these offences were a long time ago when he was a very immature naive lad and he really has no idea whether he was convicted or recorded without conviction or ??)
3. Make appointment at US consulate in Melbourne and attempt to get Visa

Also, do multiple driving charges (speeding/careless driving/unregistered driving) constitute multiple convictions under US law? does anyone know?

Thank you all again

 

[JohnK]

Also, do multiple driving charges (speeding/careless driving/unregistered driving) constitute multiple convictions under US law? does anyone know?

I don't know about multiple driving charges but US immigration does not want to know about drink driving offences that did not result in a jail sentence.

I ticked 'Yes' on the Visa Waiver in 2007 and was taken for a separate interview and was advised next time to tick 'No' on the Visa Waiver. I filled out an ESTA application last year and had no issues at all. I keep the court documents in my travel folder in case they ever want to see them.

 

[Maca44]

Thank you all for your quick replies...I am feeling slightly more confident now.

Excuse my ignorance, but are you suggesting that I should
1. Not even attempt esta application
2. Apply for a National Police Check through AFP under the immigration section which would show spent convictions - if nothing shows on this is it safe to assume that he has no convictions (these offences were a long time ago when he was a very immature naive lad and he really has no idea whether he was convicted or recorded without conviction or ??)
3. Make appointment at US consulate in Melbourne and attempt to get Visa

Also, do multiple driving charges (speeding/careless driving/unregistered driving) constitute multiple convictions under US law? does anyone know?

Thank you all again

When you fly into the USA and fill out the arrival card one of the questions asked is have you every been "arrested or charged" (note OR), so you could run the risk of being turned back at immigration by answering 'No' or go through the appropriate channels and apply for a visa. If you have been arrested OR charged you are not entitled to enter the US via the Visa Waiver Program, and must apply for a visa. I assume there are many that run the risk, but is it worth it?

 

[serfty]

... I assume there are many that run the risk, but is it worth it?

Some consider it low risk and worth it to avoid the base USD131 application fee.

 

[foxmum]

Okay after a bit more researching I have a few more points I would like opinions on.
Firstly I am happy to go to the consulate and get a visa if that is necessary, however I am unclear as to whether we need to.
Now as I read the question it is only crimes of moral turpitude and/or multiple convictions which resulted in prison term of 5 years+. Now 'malicious damage' is definately on the moral turpitude list however I am assuming that the driving convictions do not need declaring as they did not result in jail time and are not crimes of moral turpitude.
So therefore he has one crime that he should declare - malicious damage. However, yes he was charged with this offence (he was not arrested) but we are unsure if he received a conviction (as the crime has never shown up on any police checks even the one he needed for DHS for his work 15 years ago when it wouldnt have been a spent conviction). Therefore if he wasnt convicted then technically can he answer the question NO as he was not arrested and not convicted.
But the previous thread has said that you fill out a card on the plane that asks have you ever been charged or convicted well he obviously was charged with malicious damage.
What are your interpretations?

 

[Maca44]

Okay after a bit more researching I have a few more points I would like opinions on.
Firstly I am happy to go to the consulate and get a visa if that is necessary, however I am unclear as to whether we need to.
Now as I read the question it is only crimes of moral turpitude and/or multiple convictions which resulted in prison term of 5 years+. Now 'malicious damage' is definately on the moral turpitude list however I am assuming that the driving convictions do not need declaring as they did not result in jail time and are not crimes of moral turpitude.
So therefore he has one crime that he should declare - malicious damage. However, yes he was charged with this offence (he was not arrested) but we are unsure if he received a conviction (as the crime has never shown up on any police checks even the one he needed for DHS for his work 15 years ago when it wouldnt have been a spent conviction). Therefore if he wasnt convicted then technically can he answer the question NO as he was not arrested and not convicted.
But the previous thread has said that you fill out a card on the plane that asks have you ever been charged or convicted well he obviously was charged with malicious damage.
What are your interpretations?

It is up to the indivual as to what they do. I would apply, but then my brother who was charged with assault about 30 years ago and received a bond flies regularly to the USA and simply says 'NO' on the form and has never had a problem. There are other threads in this forum to suggest that under the Privacy Act the Australian authorities can only release very limited information.

 

[possumFF]

Traffic offences are, I think, civil offences. They are not criminal offences. Therein lies an important distinction.

Thank you all for your quick replies...I am feeling slightly pt esta application
2. Apply for a National Police Check through AFP under the immigration section which would show spent convictions - if nothing shows on this is it safe to assume that he has no convictions (these offences were a long time ago when he was a very immature naive lad and he really has no idea whether he was convicted or recorded without conviction or ??)
3. Make appointment at US consulate in Melbourne and attempt to get Visa

Also, do multiple driving charges (speeding/careless driving/unregistered driving) constitute multiple convictions under US law? does anyone know?

Thank you all again

 

[markis10]

Traffic offences are, I think, civil offences. They are not criminal offences. Therein lies an important distinction.

DUI is not one of them though.

 

[JohnK]

DUI is not one of them though.

We have been through this one before. DUI is a traffic offence not a criminal offence.

 

[markis10]

We have been through this one before. DUI is a traffic offence not a criminal offence.

John, try again, I said DUI, not PCA, The Crimes Act 1900 (NSW) creates a number of offences of dangerous driving where a specific injury is caused to another person. The following offences are created:

"Under the influence of intoxicating liquor, or of a drug" - that is DUI, not PCA and is charged under the crimes act.

The offence of Drink Driving is created under the Road Transport (Safety & Traffic Management) Act 1999 "The Act". It is an offence to do either of the following, while there is present in a persons blood either the "low" (more than 0.05 but less than 0.08), "mid" (more than 0.08 but less than 0.15), or "high" (more than 0.15) range prescribed concentration of alcohol.

The two are often confused however in the OPs case, it PCA .


We may have been through it before, but I also note that in terms of "drink driving", your statement is also at odds with those more learned in the laws and their implications:

" This is because unlike many other driving offences such as speeding or failing to abide traffic signs, drink driving is a crime. This means that if you are convicted of drink driving you will have a criminal record."

http://www.candtlawyers.com.au/Drinkdriving.asp

 

[NM]

We have been through this one before. DUI is a traffic offence not a criminal offence.

DUI is not one of them though.

Traffic offences are, I think, civil offences. They are not criminal offences. Therein lies an important distinction.

For the purpose of eligibility to use the USA Visa Waiver Program, how the it is classified in Australia is not relevant. What matters is whether the US Dept of Homeland Security (or whichever department is responsible for the Visa Waiver Program) determines its to be a crime involving moral turpitude. This wiki gives a list of crimes that are and are not considered to involve moral turpitude.

 

[markis10]

Any PCA offences don't fit in the definition of Moral turpitude but DUI does under the category of assault (GBH), drunkenness is specifically excluded unless it involves the harm of another being, not a big fan of wikis, but .gov sources are pretty authoritative:


http://www.state.gov/documents/organization/86942.pdf

 

[JohnK]

We may have been through it before, but I also note that in terms of "drink driving", your statement is also at odds with those more learned in the laws and their implications:

" This is because unlike many other driving offences such as speeding or failing to abide traffic signs, drink driving is a crime. This means that if you are convicted of drink driving you will have a criminal record."

There is no criminal conviction recorded for a PCA offence. A licence suspension fine, court costs and you are back in business.

I can understand once you start to cause damage or harm to people then this is a totally different matter.

For the purpose of eligibility to use the USA Visa Waiver Program, how the it is classified in Australia is not relevant. What matters is whether the US Dept of Homeland Security (or whichever department is responsible for the Visa Waiver Program) determines its to be a crime involving moral turpitude. This wiki gives a list of crimes that are and are not considered to involve moral turpitude.

As far as US Immigration is concerned drink driving is a traffic offence. I have had first hand exeperience with an interview when I entered the USA in 2007.

Let's be a little realistic about these issues sometimes. The USA does not care if you have had minor traffic convictions or even drink driving offences that did not involve a jail sentence imposed.

 

[oz_mark]

I'm guessing PCA is some NSW thing? Can't say I have heard of such a thing before