Low-BAC Drivers and the Law

This archived article is from April 2004. Although every effort has been made to make sure the information presented is accurate, please note that it may contain information that is out-of-date.

How should the law treat drinking drivers whose blood alcohol concentration (BAC) is below the Criminal Code limit of 0.08?

Although impairment begins with the first drink, the majority of drivers involved in alcohol-related fatal crashes have BACs over 0.15. These high-BAC drivers represent about one per cent of the cars on the road at night and on weekends, but nearly half of all drivers killed at those times. Most fall into one of two major categories: the young (ages 19 to 24) and the hardcore.

In Canada’s system, the federal government shares responsibility for impaired driving with the provinces and territories. The federal Criminal Code, for example, addresses driving or care and control of a vehicle with BACs exceeding 0.08. The Canada Safety Council recommends dealing with lower-BAC drivers under provincial and territorial highway traffic acts.

Prevention the goal

The priority must be to prevent alcohol-related traffic crashes, not merely to punish drinking drivers. Penalties for drinking and driving are very tough across Canada. The problem is that many drinking drivers do not think about consequences before taking the wheel.

Penalties, regardless of severity, have little preventive impact unless they are seen to be enforced. That is why roadside checks and visible enforcement are very effective deterrents.

The gauge of progress should be the rate of deaths and injuries due to road crashes involving a drinking driver. Criteria such as the number of licence suspensions, severity of penalties and implementation of specific types of legislation, while relevant, are not valid measures of prevention.

Highway traffic acts

Most jurisdictions impose administrative licence suspensions on drivers with BACs below the Criminal Code limit or if the officer believes the driver is affected by alcohol; durations vary. Some also have remedial and/or assessment programs for low-BAC drivers with repeat suspensions.

Administrative licence suspensions provide a measured response to the risk posed by low-BAC drivers. They protect the public by taking potentially dangerous drivers off the road, and give those drivers a strong warning. These suspensions are an effective tool in the fight against impaired driving, in part because they impose swift and certain consequences. Some provinces have licence reinstatement fees, and requirements for assessment and treatment in the case of repeat suspensions.

Specific sanctions for drinking drivers with lower BACs vary from one part of the country to another. From a national perspective, this inconsistency makes it difficult to inform Canadians about those which apply in the jurisdiction where they live. Indeed, a 2003 survey found that less than half of respondents knew there is a lower alcohol limit in their province at which police can suspend driving privileges; only six per cent could identify that limit.


There is no evidence that charging low-BAC drivers under the federal Criminal Code would prevent more deaths and injuries than dealing with them under provincial and territorial traffic regulations.

Making conduct criminal is society’s ultimate condemnation. The Criminal Code of Canada addresses offences such as murder, rape and assault, that violate basic societal norms. Criminal Code sanctions are very severe. For example, a criminal conviction, be it for armed robbery or for driving with a BAC over 0.08 limits travel and job opportunities for the rest of the offender’s life. Justifiably the legal process to charge and convict a felon is intricate and costly.

Provincial and territorial transport officials, represented in the Canadian Council of Motor Transport Administrators (CCMTA), have taken a position against lowering the criminal BAC to 0.05. According to CCMTA, this would hamper the ability of the police to detect drivers with a BAC greater than 0.08 (who are a greater crash risk), due to the over-extending of enforcement resources. CCMTA says a move to criminalize drivers who are at lower risk of collision involvement would further burden an overtaxed criminal justice system without increasing the deterrent effect of the law.


Canada is making impressive progress in its fight against impaired driving. Between 1995 and 2000, road fatalities involving a drinking driver dropped by one-third. The problem is far from solved, but this progress indicates that countermeasures now in place are working.

How to deal with drivers with BACs below the Criminal Code limit has been the subject of much debate. The Canada Safety Council has developed the following recommendations to offer a realistic and practical direction for public policy.

1. Deal with low-BAC drivers under highway traffic acts.

Driving ability can be impaired at low BACs, although the incidence of fatalities rises dramatically starting at 0.15. The federal Criminal Code addresses higher BAC drivers starting at 0.08, who are implicated in the majority of alcohol-related road fatalities.

It is important to deal firmly with individuals with BACs below the 0.08 level, both to prevent them from causing immediate harm and to ensure they do not join the high-BAC group. The Canada Safety Council recommends that the responsibility to address drivers with BACs below 0.08 remain with the provinces and territories.

Highway traffic acts provide effective regulatory tools. For example, administrative licence suspensions enable police to apprehend low-BAC drivers, remove them from the road and give them a firm warning not to continue drinking and driving. These acts also provide a means to mandate intervention programs, which can help prevent these people from becoming chronic drinking drivers.

2. Harmonize the BAC at which administrative licence suspensions are imposed.

Canada’s 13 jurisdictions vary widely in their criteria for administrative licence suspensions, as discussed in the January 2004 issue of this newsletter. This inconsistency can create confusion and inequities.

The Canada Safety Council recommends a common BAC for short-term suspensions in all jurisdictions. This would provide greater consistency across Canada, and would permit a stronger message to be sent to the Canadian public to increase awareness of penalties for drinking and driving.

3. Treat administrative suspensions like traffic violations.

Currently, a number of jurisdictions do not record on the driver’s record the short-term suspensions or prohibitions imposed for violations of the lower BAC limit. This makes it difficult to identify recidivists so that appropriate action can be taken.

Inclusion of short-term suspensions on the driver’s record will help police and licensing authorities identify those who repeatedly drink and drive. The Canada Safety Council recommends that BAC-related suspensions be retained on a driver’s record along with demerit points, and shared with adjoining jurisdictions in the same way as other traffic violations such as speeding.

4. Provide intervention programs for repeat administrative suspensions.

Some jurisdictions already have requirements for assessment and treatment in the case of repeat suspensions. Such interventions are intended to address the root of the problem, such as alcohol dependency.

The Canada Safety Council recommends that Best Practices be established for such programs, and that assessment / remedial programs be provided for drivers with repeat administrative suspensions within a specified period of time. These programs should be provided at the driver’s expense.

5. Enhance enforcement through well-publicized and visible roadside checks by police

Visible, effective enforcement is critical in the fight against impaired driving. Roadside spot checks, in particular, have been shown to reduce the number of drunk drivers on the road.

Drivers with low BACs are difficult to detect through routine patrol or spot check programs because most show no obvious signs of impairment.

The Canada Safety Council recommends that police agencies be given resources and training to apprehend low-BAC drivers using roadside spot checks, and that they be authorized to use proven technologies such as passive alcohol sensors to detect drivers with low BACs.

6. Increase public awareness of countermeasures for low-BAC drivers.

Most Canadian drivers are unaware that BAC limits lower than that in the Criminal Code already exist in most provinces/territories. This lessens the potential deterrent effect of the lower limits. (If the public does not know what they are, how can they be expected to comply?) If the administrative licence suspensions at lower BACs are to deter drivers from operating a vehicle after they have been drinking, drivers need to know about them.

The Canada Safety Council recommends that substantial efforts be initiated to increase public awareness about existing lower BAC limits and their associated sanctions, to enhance the potential deterrent effect of these measures.