Tougher Laws on Drunk Driving. Will They Work?

Tougher Laws on Drunk Driving. 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.

Maclean's December 14, 2009