The Government of Alberta has recently introduced legislation, known as Bill 26, which will make significant changes to Alberta’s laws around drinking and driving. I have had significant concerns with this legislation ever since I first heard that Premier Alison Redford was proposing it.
The change in the law essentially encompasses two main aspects. First, it increases the immediate penalties for those who are caught driving while above the current legal limit of 0.08% blood alcohol content (BAC). Second, it imposes similar immediate penalties for those who are caught driving while their BAC is between 0.05% and 0.08%.
The law as it stands
For those with 0.05% to 0.08% BAC
Police can suspend your license for 24 hours. Your vehicle is siezed, but it doesn’t appear that there are any financial charges to reinstate your license or retrieve your vehicle. You have no opportunity to appeal this penalty.
For those with 0.08% BAC and above
Police can (and presumably will) suspend your license for 24 hours immediately. You then have a 21-day grace period which is followed by a 90-day license suspension. Your vehicle is not siezed. You have an opportunity to appeal to the Alberta Transportation Safety Board.
The new law as proposed
For those with 0.05% to 0.08% BAC
Police can suspend your license for 3 days. Your vehicle is siezed for 3 days. You will incur costs of license reinstatement and costs related to towing and impounding of your vehicle. You have the opportunity for “immediate roadside appeal,” but none other than that.
For those with 0.08% BAC and above
Police can (and presumably will) suspend your license indefinitely. That suspension remains in place until the criminal charge is resolved. Your vehicle is siezed for three days. You will incur the cost of license reinstatement and costs related to towing and impounding of your vehicle. You have the opportunity to appeal this suspension to the Alberta Transportation Safety Board.
NOTE that these penalties are for the first offence (in a ten-year period) only. Penalties increase if you are found to be in these conditions more than once.
Background on British Columbia
The Government of British Columbia introduced similar legislation in September 2010. An announcement from the British Columbia government announced this November that the number of alcohol-related motor vehicle deaths decreased by 40%. 68 deaths were determined to have been alcohol-related during the period of October 1, 2010 to Septemb er 30, 2011 versus the five-year annual average of 113 such deaths.
Problems with Bill 26
I have a number of significant issues with Bill 26 and the law as it is proposed.
Wrong focus
Premier Redford has stated that the law is intended to “change the culture” and make people think about drinking responsibly. However, this law, at least in part, does no such thing. Those who have not consumed alcohol in sufficient quantity to reach a 0.08% BAC are not behaving in a criminal fashion. By definition, they are “drinking responsibly.”
Statistics from Alberta Transportation (PDF) show that 8.0% of all fatal collisions in 2010 occurred when there was alcohol involved, but driver(s) were not deemed to be criminally impaired. In the same period, 13.8% of fatal collions had one or more drivers criminally impaired. A tremendous 73.8% of fatal collisions showed no sign of impairment by alcohol, drugs, fatigue, or any other factor.
Also from that period, non-fatal collisions had 2.1% non-criminal alcohol involvement, 2.6% criminal involvement, and 93.4% with no impairment at all.
Now, I grant that 33 deaths occurred in 2010 where at least one of the drivers had been drinking. However, it is not shown that alcohol, in fact, played any part in the accident. It may well be that all 33 were as a direct result of alcohol-influenced driving errors, but this is not indicated as a direct correlation just by reviewing these figures. I also grant that the families of those 33 people were likely devastated by the loss of their loved one. My argument is not that these 33 individuals are “just numbers” or don’t matter. But there is no factual information provided that suggests that these same individuals would not have lost their lives had the drivers, in fact, been completely sober.
I think it is fair to surmise that being “drunk” and driving a vehicle is a very, very bad idea, and endangers the lives of the driver, the passengers, and innocent people in other vehicles and on the street. However, where exactly that line is, I’m not clear. However, I am not intimidated by drivers who have consumed, say, two drinks, and then driven. I suspect that (depending upon the individual themself and their tolerance for alcohol), this puts them somewhere in between 0.04% and 0.07%. But, as I say, I have no idea what their BAC actually is. I am, however, significantly intimidated by those who have consumed four, five, or eight drinks before driving. I believe that this makes them a profound and immediate threat to others around them, and themselves.
I do not believe it reasonable to focus efforts on those who have consumed two glasses of wine or beer with dinner or after work are worthy of such imposing and severe penalties, nor that they are the individuals who pose significant and immediate threat. To go to the grave and unique circumstance of requiring a police officer to impose the penalty, without an opportunity to appeal and without having been found guilty in a court of law, with all of the constitutional protections that provides (see Sections 7 and 11 of the Canadian Charter of Rights and Freedoms), is antithetical to a society which values the concept of being innocent until proven guilty.
Look, either you believe that Sections 7 and 11 are rights to be granted to all citizens, or they are not. Any picking of choosing based simply on how publicly distasteful a given law is, is a logical fallacy. If a police officer can impose immediate penalties of suspending a drivers license and siezing a vehicle are suitable for driving with a BAC this is not even considered criminal, why not allow the same for those who are found within a range below what is deemed to the the legal speed limit? For example, if you’re caught to the QEII on your way to Edmonton doing 90 in the 110 zone, you’re not yet breaking the law, so they can’t give you a speeding ticket. So how about they just impound your car instead?
I get that the Province doesn’t have control over what the legal limit is. That is federal jurisdiction and is embodied in the Criminal Code of Canada. But if driving above 0.05% is so grievous that several provinces how have administrative penalties in place, why not just lobby the federal government to change the Criminal Code? Imposing administrative penalties does nothing but penalize individuals who have not committed a criminal act.
Lack of appeal
The appeal that is provided in Bill 26 for being caught driving while in the “danger zone” is “immediate roadside appeal.” What the hell does that mean? The officer decides to impound your vehicle, but based upon your pleading, he’s supposed to reconsider? This isn’t an appeal process. It doesn’t vaguely resemble an appeal process.
Severity of administrative penalty
If you are caught driving over 0.08% BAC, you immediately lose your license and are unable to have it reinstated until the ciminal matter is resolved. In other words, until you are found either guilty or innocent. And what if you’re found innocent? Well, you get your license back and you get any fees back that you incurred as a result of the vehicle seizure. But what about the one or two years you spent without your license while waiting to get through the court system? This is an unreasonable penalty to impose prior to someone having even being found guilty.
No presumption of innocence
There is a concept in law called Blackstone’s formulation. It states that it is “better that ten guilty persons escape than that one innocent suffer”. You can disagree with that notion, but I do believe that it is well-established in our system of laws. Generally speaking, we would rather that a guilty man walk free than for an innocent man to be unfairly penalized. Here again, you either support the notion that the prosecution has the obligation to prove guilt beyond a reasonable doubt, or you don’t. This cannot be applied in such fashion that only some alleged offenders get the benefit of presumed innocence, and others do not.
Reliability of roadside testing equipment
Roadside testing devices are, by their nature, somewhat unreliable. There are many factors which can lead to erroneous readings on roadside testing devices. Now, I’ve never been arrested for driving under the influence, but I assume that if the roadside device finds you to be impaired, you are taken to the station where you can be tested with more reliable devices. That’s how I think it works. But you’re not going to be taken to the station for blowing between (an alleged) 0.05% to 0.08%, because you’re not under arrest as you haven’t committed a crime. Has the device been properly calibrated? Has the ambient temperature been taken into account? You have no way of knowing any of this, because you have no judicial process to discover these facts. Your license and car are taken and you’ll have to shell out some $600 to get them back.
Want to change drinking laws?
As I’ve said, maybe 0.05% is dangerous. I’ve always assumed not, because it’s not illegal. I’ll willingly acknowledge that I may be wrong. But if that’s the case, then criminalize 0.05%. I don’t have any particular problem with changing what is and is not the legal limit for BAC. Frankly, I have no idea what should be the legal limit. But as of right now, it’s 0.08%.
As near as I can tell, this has nothing to do with drinking and driving, and everything to do with an additional revenue source for the province. If the province wanted to make 0.05% illegal, they would make it illegal, federal jurisdiction be damned. Perhaps they even have that right. Perhaps the Criminal Code of Canada can state the legal limit is 0.08% and the Alberta government can impose their own 0.05% limit for criminal purposes and then try them in provincial court. I don’t actually know. But if they wanted to make 0.05% illegal, I’m sure they could find a way. They obviously do not, and simply wish to find a way to extract some dollars from the residents of Alberta.
I do not condone, defend, or endorse drunken driving
Lest this be taken as some kind of defense of drunk driving, let me state that I have called police on a friend who drove away drunk. I told him I would, and I did. I once had a roommate who was an alcoholic. I told him that while it made me uncomfortable, all I demand is that he call me when he needs to come home and was drunk. After a third or fourth time, I kicked him out. I do NOT condone driving drunk.
Neither do I condone a law which is such an egregious breach of the fundamental legal rights of citizens. This is a bad law, with bad provisions, and bad penalties. There is no defence of this law as improving safety. I don’t know why the alcohol-involved fatalities in British Columbia dropped by 40%. Was it because of administrative penalties on those between 0.05% and 0.08%? Was it because of the siezing of licenses of those above 0.08%? Was it increased enforcement that has nothing to do with either of these? I don’t know. The government in British Columbia spins it that this law was the direct cause of that reduction, but there has been no proof of that. I’m completely willing to accept that it was, in which case it seems that 0.05% should be the new limit for operation of a vehicle. But I haven’t found any information to show a direct causal relationship between the law and the reduction. Neither have I seen any such proof from the Government of Alberta in support of Bill 26.
It is certainly fashionable to be sternly and vigorously against drunk driving, and it is certainly socially acceptable to want to impose harsh penalties on those who are caught doing so. I have no issue with either of those things. Want to take the license of a convicted drunk driver for ten years? I say do it. Twenty? Why not, let’s talk about it. But to impose laws based upon the fashionability of the cause and the desire to appear to be “doing something” is highly distasteful for a society that prides itself on granting rights to all citizens and equal treatment in all circumstances.
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