Curbing drunk drivers is harder than you think

Canada is considering tougher and broader laws. Will they work?

Their actions are indefensible: Roger Walsh, the 57-year-old Quebecer sentenced to life in prison this September for running over and killing wheelchair-bound Anee Khudaverdian in 2008—his 19th impaired-driving conviction. Andrew Anthony Charles, a 25-year-old from Vancouver Island, recently handed three years for an alcohol-soaked April 2005 crash that took the lives of his girlfriend, Doreen Joseph, 20, and cousin, Glen Charles Jr., 23. Wladyslaw Bilski, a 49-year-old drunk from Chatham, Ont., who, earlier this fall, got four years, one for each of the elderly women he killed—Marion Dawson, Jean Ripley, Verna Neaves and Bernice Phillips—when he plowed his minivan head-on into their car as they returned home from a November 2007 church supper. Bilski’s blood alcohol level was more than three times the legal limit.

The list of offenders, and their innocent victims, goes on. Anyone with doubts that drunk driving is still a problem in Canada need only scan the headlines. In an era where the rates of all types of crime have dropped to 30-year lows, and our roads are safer than ever, the sometimes lethal combination of alcohol and automobile remains a stubborn phenomenon. In 2006 (the most recent statistics available), 907 Canadians were killed in crashes involving a drinking driver. Thousands more were injured.

Little wonder that federal Justice Minister Rob Nicholson last month announced his intention to yet again toughen the country’s impaired-driving laws. Endorsing the June report of the all-party House of Commons justice committee, Nicholson said he wants to give police broad new powers to conduct random roadside breath tests. (As the law currently stands, officers must have a reasonable suspicion—an admission of drinking, or possible indications of impairment like the odour of alcohol, or erratic driving—to use the Breathalyzer.) RBT, as the random checks are known, is now in place in several European nations, and has been a long-standing practice in Australia, where millions are waved to the side of the road, asked to board “Booze Buses,” and blow every year. It’s a change that would put Canada, already home to some of the world’s most stringent sanctions for impaired driving, at the forefront of a global war.

But there’s a hitch. Despite almost three decades of experience, there’s no clear scientific proof that allowing police to arbitrarily detain and test drivers is any more effective in reducing drunk-driving crashes than the standard checkpoints. In fact, there’s a growing body of evidence—clogged courts, falling charge rates, overburdened cops—that our natural impulse to crack down on those who get behind the wheel when loaded may have become part of the problem. Is it time for a new battle plan?

It has been illegal to have “care or control” of a vehicle while intoxicated in Canada since 1921. But it’s safe to say that the notion of drunk driving as a serious crime didn’t really take hold until December 1969, with the introduction of a law that prohibited drivers from having more than 80 mg of alcohol per 100 millilitres of blood, and gave the police the power to conduct Breathalyzer tests. The 0.08 per cent blood alcohol concentration (BAC) has always been an imperfect measure. Levels of impairment at that level are different from person to person, but the charts suggest it takes a 180 lb. man four to five drinks over a two-hour period to hit that limit, and two to three drinks for a 120 lb. woman. Factoring in a margin for error, police in Canada generally won’t lay an impaired-driving charge until a person blows 0.10 per cent.

If you are tagged for impaired driving, the consequences can be severe. A first conviction for blowing over the limit nets a minimum $1,000 fine, and an automatic one-year licence suspension (although some provinces will cut the penalty to three months if the offender agrees to have their vehicle’s ignition system fitted with a blow-and-go alcohol sensor). A second, no less than 30 days in jail, and the penalty for subsequent convictions ranges between 120 days and five years. Should you cause bodily harm because of your impairment, the maximum prison term is 10 years. If you kill, it is a life sentence.

And the act of driving anywhere near the legal limit has also become costly. Every province and territory, except Quebec and Alberta, now hand down immediate roadside licence suspensions, ranging from 24 hours to 90 days, to drivers who register 0.05 per cent and above (0.04 per cent in Saskatchewan). Such “administrative” suspensions don’t lead to a criminal record, but they often cause insurance premiums to skyrocket.

Much of the testimony before the Commons justice committee last winter revolved around a push to replace those roadside suspensions with criminal charges, lowering the legal BAC threshold to 0.05 per cent. Proponents argued that drivers with that much booze in their system are already functionally impaired, and that such a move would result in a “significant reduction” in deaths and injuries. But the committee’s majority report rejected their calls, citing a “lack of consensus among experts” as to whether a lower BAC would really make the roads safer. (A recent study found that 81.5 per cent of fatally injured drunk drivers in Canada have BACs over 0.08 per cent, and that most in that group were driving with at least double the legal limit.)

It was not a decision that pleased anti-drunk-driving campaigners. “We’re out of step with the rest of the world,” says Robert Solomon, a University of Western Ontario law professor and Mothers Against Drunk Driving (MADD) Canada’s director of legal policy. “Canada has one of the worst records of any comparable democracy in terms of drunk-driving fatalities on its roads.” But those who argued against a lower legal limit, like Emile Therien, the past president of the Canada Safety Council, scoff at the notion the country is somehow falling behind. “If you don’t think our laws are tough, get caught,” he says. “The first thing you are looking at is $30,000 in legal bills.”

Indeed, one of the things that seemed to heavily influence the committee’s decision was a national survey of Crown attorneys and defence lawyers conducted by Ottawa’s Traffic Injury Research Foundation (TIRF). At present, Canadian courts process more than 50,000 impaired cases a year. Facing such stiff penalties, more than 40 per cent of accused plead not guilty and go to trial. Even the most basic case takes four or five hours of court time—and at least that much pre-hearing preparation—to resolve. And the conviction rate at trial is reported to be just 52 per cent. (The overall conviction rate, including guilty pleas and pretrial bargains, is 78 per cent, down from a figure of 90 per cent two decades ago.) Prosecutors and defence lawyers estimated that lowering the BAC would result in 75,000 to 100,000 more impaired cases every year, potentially overwhelming an already strained legal system.

Everyone seems to agree that the current system isn’t working that well. “We have de facto decriminalization of impaired driving,” says MADD’s Solomon. “We’re not enforcing the law, it’s too complex. The police are very reluctant to lay charges.” To back up that claim, he cites charge rates that have actually fallen in Canada from one in every 279 licensed drivers in Canada in 1997 to just one in every 369 licensed drivers in 2006. (In comparison, U.S. law enforcement charged one in every 139 drivers with driving while intoxicated in 2006.) Police reticence, says the law professor, is born out of time constraints and frustration—a recent national survey of police found that it takes officers an average of 2.8 hours to process a basic impaired charge, and 4.4 more hours if it goes to trial. Roadside suspensions are faster, and much less likely to be contested.

The debate, then, is over how we should fix the system. In their last run at the drunk-driving laws in 2008, the federal Conservatives moved to help out the clogged courts by limiting the type of evidence that defendants can introduce. (Favoured tactics like the “two-beer” defence, where witnesses were called to testify that a driver only had a couple of drinks, throwing the accuracy of the Breathalyzer into question, have been outlawed.) But the government’s plans to move to the random breath tests—almost a consolation prize for those who had pushed for a lower BAC limit—might end up opening up vast new avenues for legal challenges.

Even in recommending RBT, the justice committee acknowledged that pulling people over and testing them for alcohol, without any grounds for suspicion, likely violates Sections 8 and 9 of the Charter of Rights, which protect against unreasonable search and seizure and arbitrary detention. All rights in Canada are subject to “reasonable limitations” under Section 1 of the Charter, but the Supreme Court will ultimately have to make a call on whether RBT fits that definition.

“There are areas of concern to us,” says Nathalie Des Rosiers, general counsel of the Canadian Civil Liberties Association. “When you don’t have reasonable and probable cause, you open the door to abuse.” And if Canada does head toward RBT, it might not be a bad idea to demand some more accountability from the police forces that will be wielding this broad new power, she says. (RBT proponents point out that Canadians are already subject to plenty of arbitrary search and detention at security checkpoints in airports, court houses and even the House of Commons.)

But the bigger question might be whether random breath tests are really worth the fight. The justice committee pointed to studies suggesting that the change from standard checkpoints to RBT significantly reduced fatalities in Ireland (23 per cent) and in New South Wales, Australia (a 36 per cent drop in fatally injured drivers with BACs over 0.05 per cent). However, such clear-cut examples of RBT’s superiority are fairly hard to come by. Impaired fatalities and accidents do have a tendency to dip dramatically after the introduction of random stops, but that effect rarely lasts, and may well be a function of the publicity surrounding the change, rather than the checkpoints themselves.

The gold-standard study of RBT, a 2001 review of the scientific literature by the U.S. Centers for Disease Control, which examined 23 papers spanning from the early 1980s to the late 1990s, found “no evidence that their effectiveness for reducing alcohol-related crashes differed” from regular checkpoints. In 2009, another meta-analysis looking at the effect of both types of checkpoints reached a similar conclusion. “It had been assumed that checkpoints are more effective when BAC tests are taken from all drivers who are pulled [over],” wrote the Norwegian researchers. “The subgroup analysis does not seem to confirm this assumption.”

And while both RBT and standard checkpoints reduced alcohol-related crashes by about 17 per cent, neither type seems to have much of an effect in reducing the most severe accidents. The large drop in fatalities in Australia following the switch to RBT may have been a function of culture that initially had more drunk drivers, says the meta-analysis. (Forty-four per cent of Aussie drivers involved in fatal crashes in 1981 were over the limit, versus 36 per cent in the U.K., and 30 per cent in the U.S.) Or perhaps it has something to do with the “highly visible” way police in Australia—roving stops, booze buses, and sustained enforcement blitzes that Breathalyze 40 per cent or more of the populace every year—go about their business. Regardless, three decades of research seem to point to the same conclusion: sobriety checkpoints aren’t particularly good at catching drunk drivers, but they can be effective at dissuading some drinkers from getting behind the wheel in the first place.

Which brings us to the question of who is it that still drives drunk in this age of severe penalties and hyper-awareness? The 2008 Road Safety Monitor, an annual drinking and driving roundup produced by Ottawa’s TIRF, found 80 per cent of Canadians professed to be “very” or “extremely” concerned about impaired driving, more than crime (64 per cent), the economy (59 per cent), or global warming (50 per cent). When asked about their own behaviour, only 5.2 per cent of respondents copped to driving “when they thought they were over the legal limit” in the previous 12 months. “In Canada, you are really talking about a small group of persistent offenders,” says Ward Vanlaar, the research scientist who compiled the report. “The majority of people do understand the dangers of drunk driving. It’s not like other road safety issues, say speeding or tailgating, where people say they are concerned, but do it all the time.”

How big is the habitual impaired-driver problem? One 1995 study found that while only three per cent of American drivers have a DWI conviction, 12 per cent of all drunk drivers killed in crashes do. But some individual states report that as many as 47 per cent of people arrested for impaired driving have prior drunk-driving convictions. And getting an accurate measure is difficult, given the evidence that repeat drunk drivers become pretty adept at disguising their inebriation. Proponents of RBT point to U.S. research suggesting police miss 50 to 60 per cent of legally impaired drivers they pull over at standard spot checks (why that doesn’t translate into more charges at random checkpoints remains a mystery). Luck also comes into play. Canada’s Department of Justice places your chances of being arrested while drunk behind the wheel at somewhere between one in 500 and one in 2,000.

The truth is that for all the effort we’ve put into stopping impaired driving, we don’t actually know much about those who engage in the behaviour. Thomas Nochajski, a sociologist at the University of Buffalo who is leading a study of drunk drivers for the National Institute on Alcohol Abuse and Alcoholism, says they fall into many subgroups: young people who don’t yet know their limits, chronic older offenders, women with a history of abuse, and the cross-addicted. His research suggests that broad, get-tough solutions are unlikely to work; tailored programs are better. The recidivist subgroups are hard to reach, says Nochajski, although not unreachable: few drunk drivers actually fit the definition of a severely dependent alcoholic, if only by virtue that their lives are together enough to keep a car on the road.

One promising strategy in recent years has been the emergence of special courts for drunk drivers. Rather than sentencing repeat offenders to jail, the courts divert them into intensive alcohol treatment programs, subjecting them to random testing, and weekly progress appearances before a judge. There are now more than 500 such courts in the U.S. They not only save money—it costs about U.S. $3.50 a day to monitor someone on probation, versus $79 a day to keep them in jail—but seem to have significantly reduced recidivism as well.

Canada doesn’t yet seem ready to consider such a move. Nor do the various levels of government seem that eager to embrace another proven method, the ignition interlock (championed by pretty much all the experts and also recommended in the justice committee report), which is said to reduce recidivism by 50 to 90 per cent. There are more votes in toughening legislation than in creating national technical standards for such devices, it seems.

The reality is that further reducing impaired driving is going to take a lot more creativity than we have so far demonstrated. In 1987, there were 16.9 million licensed drivers in Canada, and 4,283 traffic fatalities of all kinds. By 2006, there were 22 million drivers, and just 2,889 fatalities. The roads are demonstrably safer, yet impaired driving remains the number one criminal cause of death in the country, killing hundreds more than homicide. Progress is relative. The pain of losing a loved one to something as selfish as driving while drunk is absolute.

Curbing drunk drivers is harder than you think

  1. I can attest that Australia had a dreadful problem with drunk-driving, and it was perfectly normal to see people driving around in Queensland in the seventies not just drunk but actually drinking!

    One thing not reviewed here is the disproportionate role that repeat offenders appear to play in causing accidents and fatalities. This may just be anecdotal, but the high-profile cases always seem to be around offenders that are known drunks who have been convicted before, and who may even be without licenses etc. as a result.

    If true, then all the extra RBT and other stratagems may have little effect beyond the theatrical in addressing the problem, something akin to airport security.

  2. Make the ignition on all cars breathalyzer controlled. problem solved.

    • Ignition locks are basically useless — drunks just get a sober friend to start their vehicle for them.

      • There is no way that practice is widespread enough to make an appreciable difference.

        • I agree the ignition locks after the first conviction and suspension are good step. If for some reason a second conviction occurs I's vote for a 10-year driving ban and vehicle seizure.

          • But putting them on all cars gives economy of scale for the expense, and makes it incredibly unlikely the first offence ever occurs.

          • Ignition lock would be very effective, as the ignition locks required for repeat offenders in Ontario, require a sober person to start the engine. As well, while driving they require additional breath tests every once in awhile or the car shuts down. Therefore, the only way to get around such a key lock for a drunk driver would be to have a sober person in the passenger seat blowing in the ingition key lock breathalyzer. Sounds like a pretty good way to cut down on a large number of drunk drivers on the road.

      • Drinkers tend to prefer their own company, and sober friends are not as plentiful as you might think. On top of that, the first time a sober "friend" gets charged/sued, the practice would have legal ramifications, like bartenders serving obviously hammered patrons – it's all about liability. Would you risk your house to start your drunk friend's car for him? I'd drive him home or pay for a cab, before I'd put my ash on the line.

  3. Yeah, who are these supposed sober "friends" starting drunk's cars anyway? There just can't be that many.

    • I'm also going to say that the cost of installing breathalyzers in all vehicles might just, in the long run, be less than the cost of endless court cases. If you can't drink and drive, then you won't drink and drive, and if you don't drink and drive, you can't be charged for drinking and driving. No need to even quibble about what kind of evidence can be introduced, or whether or not RBT violates the Charter. Has it ever been so simple to stop a criminal activity in its tracks?

      • I think the cost of intalling ignition keylocks would be definitely worth it. Maybe it would even flow down and see insurance companies give a discount on insurance premiums for people who have keylocks. Or maybe even a requirement for automobiles to have a keylock system to be insursed (similar to having a saftey certification).

  4. No wonder driving when impaired is not considered a serious crime — Roger Walsh was an accident waiting to happen, and yet he had not had his licence permanently suspended after the first few convictions. I hate to think how many more like him are on the road. The article began by describing the deplorable lack of commonsense penalties for drunk driving, as in his case, but it went on only to discuss the methods and questionable value of roadside checking, and no more on the little that happens to anyone who's caught in roadside checking anyway. Who was not sickened to hear that Walsh had had so many prior convictions for impaired driving but was still allowed to have a valid driver's licence along with the freedom to drive a vehicle? Wow, just keep that fine money coming in, I guess.

  5. Is it time for a new battle plan? LOL!
    First lets clear up an issue I have with your column, alcohol IS A DRUG! These are not drunks, they are alcohol junkies. Yet every province in Canada has an "alcohol and drug treatment" program. Good job guys… set one drug apart from all the others… that's helpful to those of us in the profession.
    Why are there mandatory drug tests for every other drug imaginable for certain professions and situations and not liver function tests to seek out alcohol junkies… same same isn't it?
    Now on to the subject at hand, it doesn't work, it has never worked… jacking up the bar yet again (for the umpteenth time) is bound to work this time though, right?
    Come on, this is serious… another round of lip service is as useless as the last twenty rounds of lip service, do your damn job!!!
    The current methodology has NO EFFECT on alcohol junkies, period, you KNOW that. We haven't all been dumbed down yet.

  6. I think the article strikes a relevant chord when referring to nations' cultural attitudes toward drunk driving.

    As long as there are still people – of whatever age, gender, orientation, or geography – who jokingly and unironically describe drunk driving as "sport", drunk driving will continue to be an issue.

  7. a good start would simple be a good example by our elected membres

    Not citizen taxpayer's money to be used on alchol at any governmental event..

    cheaper over paying the usless often also drunk cops next too

  8. This article cites severe penalties for drunk driving, in my opinion there is no such thing. Eliminate an opportunity for defence by enforcing the collection of blood samples once the person has blown over .08. If we stop molly coddling drunk drivers, suspended their licenses for 5 years minimum, place them on probation and enforce either community or victim service for extensive periods of time perhaps we might get somewhere. Don't incarcerate, practise enforced probation and victim/community service.

    • I agree, these people should have to face the individuals and families whose lives have been affected or destroyed by a drunk driver. Maybe then it will start to sink in for them.

  9. Here is a video just released in Australia to try and reduce Drinking Driving this Christmas. It shows heart stopping situations of the terrible practice and results of drinking and driving.
    http://www.youtube.com/watch?v=qr12R30ouHc .
    Everyone should have a look at it and think twice before heading 'out' to that party, or having that extra drink or two before heading home. Always make sure there is a 'designated driver', or take a taxi

  10. One promising strategy in recent years has been the emergence of special courts for drunk drivers. Rather than sentencing repeat offenders to jail, the courts divert them into intensive alcohol treatment programs, subjecting them to random testing, and weekly progress appearances before a judge. There are now more than 500 such courts in the U.S. They not only save money—it costs about U.S. $3.50 a day to monitor someone on probation, versus $79 a day to keep them in jail—but seem to have significantly reduced recidivism as well.

    That seems like a win-win: we achieve the social goal AND we save money. OTOH, it doesn't score so well against the punishment / venegeance criteria, so it might be a non-starter on that basis.

  11. In bc an rcmp officer has established a precedent that if you drink even right after an accident where the victim died, you can argue that you not be charged with drunk driving as they cannot prove you were drunk at the time of the accident . that should boost sales of mickeys of vodka to carry in the glove compartment or under the seat.

  12. Why should RBT be such an unreasonable Charter violation? Driving on public roadways is a licensed privilege, not a right. If you do not want to be subjected to random breathalyzer testing, you have a choice: don't drive.

  13. Over 0.05: impound the car.
    Over 0.08: suspend the license.
    Driving with suspended license: jail.
    Driving over 0.05 with suspended license: See next.
    Over 0.12: take out their eyes towards the end of their five-year imprisonment. Solves the recidivism problem.

    All the above presumes there was no injury or death related to the impaired driving. Assault and manslaughter to be added to above, as necessary.

  14. No No NO stop 'diverting addicts' into rehab programs, it is a total waste of resources. The majority of substance abuse programs are clogged with these forced clients who have no interest and no intention of pursuing help.
    THE FIRST principal of addiction treatment is the clients genuine desire to want change, not because they were forced into a program so the lip service stats can be gathered and skewed, but because they finally have the insight to try.
    I personally have worked with clients that sat there mute for 28 days, told staff they were fools and there was no reason for them to be there other than a court order. These people ruin the chances for any client there genuinely seeking change.
    So you see it causes harm to substance abuse programs when clients are forced into treatment, wasted resources, and sabotaged co-clients.
    Anyone ever ask someone that actually knows what they are talking about before this practice started?

  15. Many countries have the answer for drunk driving. Penalties for DUI;
    One year in prison; One year in prison at hard labour; One year and you forfeit your car. DUI and you caused an accident: ten years in prison; ten years and a lifetime driving ban, and you forfeit your car.
    DUI causing death; life in prison/wop (without parole) means you die in prison. They don't believe in the death penalty either, but you don't kill someone else either. It doesn't take creativity to solve the DUI problem,–it just takes political guts, something Canda doesn't have.

  16. Drinking and driving does not kil people. Drinking and bad driving kills people.
    People who crash have bad habits to begin with. A concentrated effort against bad driving, starting with mandatory driver testing at every five year driving renewal would be a great start. Make it user pay. I would happily pay 500 every five years and pass a savage test that reduced the number and bad drivers (and reduced congestion). The bad one quarter of drivers should be relegated to public transit until they improve.
    For an impaired charge forget about the number .08, .10, .05 whatever. Charge people who are impaired. Film people, and make it a requirement that the cop can articulate in front of a judge why the individual was impaired (for any reason-sleep, alcohol, drugs, medical issues, etc).
    Chasing around drivers that are not impaired for a breathalyser is not a solution that will have meaningful benefit.

    Change people's bad driving habits. Just because a bad driver crashes when they are drinking don't point the finger at alcohol. Look at the root causes, not the easy ones.

    • Are you, with some semblance of a straight face, suggesting that alcohol intoxication can be compatible with good driving?

      • Yes. But not impairment. Stop chasing the numbers, and chase those who are actually impaired.

  17. The in car immobilizers can be bypassed or "fed" with a bottle of a gas mixture from a welding supply or medical- not a long term solution as it will be hacked if implemented broadly.

    Perhaps the drunk that permantly made me a quadraplegic could follow me in my wheelchair to pick up things I drop, push me when I get stuck, dig poo from me and just imagine all the other daily normalities that can not be done again ever even with the "help". Life is never the same. I used to work with my gands now they are just there along with varying degrees of nerve pain that drugs do not work for though oddly pot does help 7 does not have the ill side effects of opiates, morphine, methadone & the like which are costly & hard on the liver.

    I'm not sure the servant for life is the answer (I'm not sure I wan't that person around me 24/7) But that is the cost and you can not hire someone for minimum wage for care, the insurance companies do not provide enough for me as I am expected to live for a while. If I were closer to a senior the payout might be enough.

    Life is forever changed for me, never mind the family.

  18. There won't be any progress until inanities like the arrest of those people who went outside to wait for their arranged ride home are done away with. Those people were fined for acting responsibly. If that judge didn't toss the case out and order the cops to apologise publicly in writing (assuming they were literate) the whole war on DUI still looks phony as a 9 dollar bill and will never be taken seriously.

  19. 1) stop singling out alcohol (ironinally it's the drug society and law has he most control over) and make the investigation and penalties the same for all intoxicants.
    2) re-peat offenders; where the majority of what we hear about is caused by. First offence punishment is fine as is for all but the stupid, who'll repeat anyway. Second offence should be 'sorry not driving for you'. And driving without a license (or insurance) must have string deterants.
    3) Finally, public drinking establishments. Can anyone say they've not seen people over-served in a bar? We may be low on inspectors, so lets make the public incented to report bars that overserve, allow videos of such as evidence in court, and deal harshly with liqour license abuse.

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