Safety Experts Oppose Lower Criminal BAC

February 12, 2008

OTTAWA – Justice Canada is looking into the advisability of lowering criminal blood alcohol concentration (BAC) limits. Victim advocates have asked the government to lower the BAC from the current level of 80 milligrams of alcohol in 100 millilitres of blood (80 mg% or 0.08) to 50 mg%.

Today, the Canada Safety Council informed the Standing Committee on Justice and Human Rights reviewing Canada ’s impaired driving laws that public safety is better served by dealing with drivers whose BAC are below 80 mg% outside the Criminal Code.

Lower-BAC Drivers Taken Off the Road

Most provincial and territorial traffic codes impose licence suspensions and other penalties at 50 mg%. If the federal government were instead to criminalize at that level, these very effective countermeasures would no longer apply.

Roadside suspensions protect the public by taking potentially dangerous drivers off the road. They impose swift and certain consequences, which send a strong warning to the drinking driver. In Alberta, administrative licence suspensions led to 24 per cent fewer repeat impaired drivers, and 19 per cent fewer repeat offenders in alcohol-related collisions causing injury or death.

Under traffic codes, a person is assumed guilty, but the penalties are such that it is usually not worth going to court. In contrast, a criminal charge assumes innocence. The consequences of conviction are enormous: a criminal record limits travel and job opportunities for the rest of the offender’s life. Justifiably the legal process to charge and convict under the Criminal Code is intricate and costly.

Understandably, those charged are far more likely to contest the charge. If criminal charges were to be laid below the current threshold, there is little doubt that many would be challenged, further burdening an already overloaded court system.

It is important to deal firmly with drinking drivers whose BAC below the criminal level, both to prevent them from causing immediate harm and to ensure they do not become chronic drinking drivers. Statistics show the chances of a serious crash at 50 mg% are low when compared with 80 mg%. Most drivers killed in alcohol-related crashes have BAC of at least 80 mg%. Without a doubt, driving with a BAC above 80 mg% is very dangerous; a criminal charge is appropriate at that level.

Criminal BAC In Line With Other Countries

One argument used to support reducing the legal BAC is that there is an international trend to criminalize drivers at the 50 mg% level. A study commissioned by the Canada Safety Council in 2002 and updated in 2006 shows this point is not valid. Of the 77 jurisdictions examined in the report, only eight, slightly over 10 per cent, treat 50 mg% as a crime. Countries and jurisdictions with 50 mg% limits tend not to use criminal law approaches, as Canada would be doing if it were to reduce the BAC to that level in the Criminal Code.

The study, by professor David Paciocco from the University of Ottawa, shows Canada treats BAC offenders very harshly compared with other countries. For a first-time offender at 80 mg%, Canadian law allows for the highest possible maximum prison sentence among all the counties in the study, five years. The next longest possible prison sentence, even in the United States where jail is more widely used, is two years.

Prof. Paciocco found that Canada’s practice of not using criminal law for drivers under 80 mg% is in line with other countries, and that our impaired driving laws are among the strictest in the western world.

Prevent Drunk Drivers from Re-Offending

It is not rare to hear that a drunk driver with several convictions, driving suspended and uninsured, has killed someone in a crash. A lower criminal limit does nothing to stop the hard-core offender from continuing to drink and drive even after serving a sentence. Sentencing must target the reasons for this criminal behaviour.

In September 2007, correctional investigator Howard Sapers reported that too many offenders are spending time in prison without access to the programs they need to reintegrate into society. Yet the number one priority of the Correctional Service of Canada is “safe transition of eligible offenders into the community.” To prevent recidivism, impaired driving offenders require programs to help them deal with their alcohol dependency.

According to the Canada Safety Council, almost 80 per cent of offenders continue to operate their vehicles illegally, sometime without insurance, when their licence is suspended. Faced with what they see as impossibly long suspensions, these individuals simply continue to drive. Allowing them to start driving under strictly controlled conditions will help keep them in the system.

The alcohol ignition interlock is a small breath-testing unit installed under the dash and linked to the vehicle’s ignition system. To operate the vehicle, the driver must provide a breath sample. The Criminal Code allows a judge to reduce the mandatory driving suspension for a first offence from one year to three months if the offender participates in an interlock program for the remainder of the one-year period. The device is installed at the offender’s expense. Interlock programs reduce recidivism by as much as 90 per cent while the device is in the vehicle. Used in conjunction with rehabilitation, interlock can allow offenders back on the road at minimal risk and (very importantly) keep them in the system.

In 2005, road crashes involving a driver who had been drinking took 851 lives. Of these, over half of the fatalities were drivers whose BAC was above 80 mg%. The 851 impaired driving fatalities was 34 per cent lower than 1995 when 1,296 motor vehicle deaths involved a drinking driver, despite rising numbers of vehicles and drivers. Nevertheless, progress has stalled in recent years, and the problem is far from eradicated.