Legal Blood Alcohol Concentration POSITION STATEMENT

Legal Blood Alcohol Concentration POSITION STATEMENT ACICR Position on Lowering the Legal Blood Alcohol Concentration for Drivers Alcohol-Related Collisions in Alberta Canada lags behind the world leaders in traffic safety in terms of the high percentage of impairment among its fatally injured drivers and the province of Alberta is no exception.(1) In Alberta in 2008, 22.5% of drivers involved in fatal collisions were judged to have consumed alcohol prior to the crash, compared to of 5.3% of drivers involved in injury crashes. As the severity of the collision increased, the involvement of alcohol dramatically increased.(2) In 2006 in Alberta, 197 of 477 (43.4%)* road deaths were in alcohol-related crashes.(3) This ranked Alberta fourth highest among Canadian provinces. Alberta ranked highest in fatally injured drivers with a positive BAC at 40.4%* and second behind Manitoba at 34.5%* of all drivers with BAC greater than 0.08%. *crude rates In addition to collisions on roadways, off-highway use of all terrain vehicles is another source of alcohol-related deaths. Of Alberta s 100 ATV fatalities from 2002 to 2008, 39 people (out of the 85 tested for alcohol) were found to be over the 0.08% limit of the Criminal Code.(4) Current Laws Regarding Drinking and Driving In Alberta, impaired drivers can face sanctions defined federally by the Criminal Code and those defined provincially by the Alberta Administrative License Suspension Program within the Traffic Safety Act. A police officer who has reasonable suspicion that the driver or person with care and control of a motor vehicle has alcohol in their body may demand an Alco-Sur or roadside screening device test. Suspicion of alcohol in the body may come from any physical signs, driving pattern, or statement made. The roadside screening device does not measure actual blood alcohol level, but instead gives a basic indication of whether or not a person s ability to drive is impaired by alcohol. The device indicates a pass, fail, or warning. While failing the roadside screening test is not against the law, it does give the officer reasonable and probable grounds to hold a person further and demand they take a breathalyser test. The breathalyser is a machine which measures a person s actual blood alcohol level. ACICR Lowering the Legal Blood Alcohol Concentration for Drivers Page 1 of 10

The Criminal Code Regarding Impaired Driving The Criminal Code specifies three offences related to drinking and driving: impaired driving operating a motor vehicle with a blood alcohol level over 80 milligrams of alcohol in 100 millilitres of blood, and refusal to provide a sample. Section 253.1(a) defines the offence of impaired driving as: Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, while the person s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug. Observation of glassy or bloodshot eyes, unsteady walk, slurred speech, erratic driving pattern, or a smell of alcohol on the breath, among others, are considered common signs of impairment. No samples are required to determine a state of impaired driving. Section 253.1(b) states: Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, having consumed alcohol in such a quantity that the concentration in the person s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. To be charged under this subsection an individual must provide a breathalyser test or a blood sample to determine that their blood alcohol level is over the 0.08% limit. Section 254.5 states that one commits an offence if he or she refuses to give a sample to determine his or her blood alcohol level. Conviction under this section carries the same penalties as conviction under Section 253. Alberta Administrative License Suspension Program In addition to being charged under the Criminal Code, individuals charged in Alberta will also face suspension or disqualification of driving privileges under the Alberta Administrative License Suspension Program (AALS). The aim of the AALS program is to improve traffic safety in Alberta by providing law enforcement with a tool to immediately remove impaired drivers from Alberta s roadways. The AALS came into effect on December 1, 1999. Section 89(1) of the Traffic Safety Act states that: If a peace officer reasonably suspects that the driver of a motor vehicle has consumed alcohol or otherwise introduced into the driver's body any alcohol, drug or other substance in such a quantity so as to affect the driver's physical or mental ability, the peace officer may require the driver to surrender the driver's operator's license to the peace officer. ACICR Lowering the Legal Blood Alcohol Concentration for Drivers Page 2 of 10

This suspension will be in place for 24 hours or until the driver is tested by the peace officer or can produce a certificate signed by a physician showing that the driver s BAC is below 0.08%. In addition, AALS automatically (i.e., prior to conviction in court) imposes a minimum three-month suspension or disqualification on drivers who are charged with an alcohol-related offence under the Criminal Code (excluding impaired driving as defined under Section 253.1(a) of the Criminal Code). If the alcohol-related offence resulted in bodily harm or death, the term is increased to six months. In some cases, a suspension/disqualification is effective immediately and in some cases a 21-day temporary permit is issued allowing time for the charged individual to get his or her affairs in order before the suspension begins. The Graduated Drivers License Program Regarding Drinking and Driving Drivers within the Graduated Drivers License (GDL) program must maintain a zero blood alcohol level while driving. This is the case for both the Learner Stage and the Probationary Stage. GDL program drivers found with any alcohol in their blood will face an immediate 30-day license suspension. Recent End to the Two-Beer Defense The Supreme Court ruled against the two-beer defense in April 2008, concluding that 'expert' analysis is not reliable enough to outweigh a failed breathalyzer test. The 'twobeer defense' had been used to cast doubt on the accuracy of blood alcohol readings. Defendants would hire toxicology experts to calculate the rate at which their bodies metabolize alcohol, arguing that the level of actual impairment varies depending on age, weight and other factors. It was rescinded by amendments to the criminal code in July 2008. This closed a loop-hole upon which many impaired driving charges were challenged in the courts. Direction to Reduce Impaired Driving in the Alberta Traffic Safety Plan The Alberta Traffic Safety Plan (ATSP) released in October 2006 sets a target of reducing by 40% the number of road users who are killed or seriously injured in crashes involving drinking drivers.(5) The ATSP Action Plan for 2008-2009 outlines actions in four areas including education/community mobilization/marketing, enforcement (role of policing), policy/legislation, and treatment services for impaired drivers.(6) The actions listed under policy/legislation are: to record administrative license suspensions on the driver record introduction of administrative license suspensions at the 0.05% BAC level to introduce escalating BAC sanctions to reduce BAC thresholds for chronic offenders to use technological innovations for enforcement, and to expand Alberta s ignition interlock program. While none of these actions are currently being pursued by the Government, they remain in the plan and will be considered in the future. ACICR Lowering the Legal Blood Alcohol Concentration for Drivers Page 3 of 10

Evidence from the Literature A compelling case exists in the literature for keeping drivers with a BAC over 0.05% off of the roads. Scientific evidence accumulated over the past 50 years indicates a direct relationship between rising BAC levels and the risk of being involved in a motor vehicle crash. According to Moskowitz et al. (2000) the scientific literature contains no evidence of a threshold BAC below which impairment does not occur.(7) While there is a wide variation in the effects of alcohol from one individual to another, the evidence shows that driving performance begins to deteriorate significantly at 0.05% BAC. (8) There is also a general consensus that the skills that are most important to driving are also among the most sensitive to alcohol. A review conducted by Chamberlain and Solomon (2002) found that both laboratory and field studies indicate that important driving related skills are adversely affected by relatively small amounts of alcohol. The affected skills include vision, steering, braking, vigilance and, more importantly, information processing and divided attention tasks. Pg iii4, (1) Whether keeping drivers with a BAC of over 0.05% from driving is best done by lowering the criminal BAC limit or by using administrative sanctions is less clear. Several reviews of the evaluation literature look at the effectiveness of lowering BAC limits as a means of curbing drinking and driving and thereby reducing alcohol-related crashes, injuries and deaths. The conclusions reached range from showing substantial benefits to no benefits at all. The Traffic Injury Research Foundation (TIRF) has reviewed all of the major studies and did not find compelling evidence of a consistent and strong impact. TIRF is critical of several studies for failing to identify methodological limitations inherent in the weak designs of the studies that can lead to erroneous conclusions. Another difficulty in finding consistent and unqualified support for a lower criminal BAC is the unique situation in Canada. In addition to the Criminal Code BAC limit of 0.08%, all provinces except Alberta and Quebec have administrative license sanctions beginning at 0.05% (Saskatchewan 0.04%). Nevertheless, the following section will review the literature that exists regarding issues around lowering the BAC limit. Over the last three decades there has been an international trend to lower BAC limits. The positive experiences of other countries indicate that lowering the BAC limit of drivers to no more than 0.05% can be beneficial to traffic safety. The Netherlands, France, Austria, and the Australian states of Queensland, New South Wales and South Australia have all evaluated changes to their BAC laws and have all seen positive results from reducing the legal BAC limit from.08% to.05%.(8) All of these jurisdictions have experienced what the authors find to be meaningful declines in alcohol-related crash measures. Similarly, lowering the criminal BAC limit from 0.10% to 0.08% in some U.S. states did have a beneficial effect and these researchers feel that a similar trend could be expected should Canada lower its legal BAC level from 0.08% to 0.05%. This is supported by a number of long term studies showing positive effects on impaired driving rates resulting from administrative BAC laws.(1) While a BAC limit set at 0.05% would appear to be aimed at drivers with only moderate BAC levels, it has been shown to affect the behaviour of drivers with high BACs as well.(8) Changing the behaviour of the drivers with high BAC levels is important for traffic safety. ACICR Lowering the Legal Blood Alcohol Concentration for Drivers Page 4 of 10

It has been estimated that drivers with a BAC higher than 0.15% are 244 times more likely to be involved in a fatal crash than drivers with zero BACs.(9) Almost 56% of all drinking drivers killed in crashes in Canada during the years 2003-2005 had a BAC that was more than twice the legal limit.(10) Mann et al. find that in the majority of studies where an effect has been observed from lowering or introducing BAC limits, an impact at all BAC levels is seen suggesting a general deterrent effect.(11) Canada s 0.08% BAC limit is over 30 years old. This limit was set prior to much of the research showing the effects of lower BACs discussed above. Also, Chamberlain and Solomon find that the past 30 years have seen improvements made in the accuracy of instruments that measure BAC levels by analyzing breath samples; however, this newer accuracy has not been incorporated into practice. Surveys indicate that most police in Canada will not charge impaired drivers unless both BAC readings taken for evidentiary purposes are 0.10% or higher leaving Canada with a de facto criminal BAC limit at this higher level. This has left drivers with dangerously high BACs of between 0.081% and 0.099% largely immune from criminal sanction. Pgiii5 (1) Among other factors, hardened public attitudes toward impaired driving have caused the international trend to reduce per se BAC limits to 0.05% or lower. (1) Surveys in the United States indicate that most people believe they should not drive after consuming two or three drinks, which is equivalent to a BAC of 0.05% for many people. Further evidence of this change in attitudes is the lack of public outcry that the limit is too strict from citizens of countries that have reduced their BAC limit to 0.05%.(8) According to Mann (2001), the reduction of BAC as a part of a comprehensive approach to fighting impaired driving has been particularly effective. Implementing a legal BAC limit is just one part of the program required to reduce drinking and driving. To maximize the chances for a positive impact, the public must be aware of the introduction of the law, perceive it will be (or is being) enforced and perceive that they have a strong chance of being apprehended if they break the law. Pg 580 (11) As well, levels of public and political support for reduced BAC and introducing such measures with the resources necessary to achieve the impacts are important determinants of the success of lowering BACs. The risks of drinking and driving for young drivers are extremely high warranting a special BAC limitation for this group of drivers. The relative risk of involvement in a fatal crash of a young driver aged 16-19 years with BAC of 0.08% to 0.099% is 40 times the risk of comparable youth who have not consumed alcohol. Similarly, infrequent and occasional drinkers also have elevated risks at low to moderate BAC levels.(1) ACICR Lowering the Legal Blood Alcohol Concentration for Drivers Page 5 of 10

Lowering the Criminal BAC vs. Introducing Administrative License Suspensions at 0.05% While there is clear evidence that impairment begins at BAC levels lower than 0.08% and the international trend is to keep drivers with BAC levels of over 0.05% off the roads agreement on the types of laws and the severity of the penalties that should be used to do so does not exist. In the Canadian context the debate is whether the BAC limit should be lowered in the Criminal Code or whether the use of provincial administrative license suspensions and fines should be used. One option proposed by some organizations is to lower the Criminal Code BAC level but also put less severe penalties in place for driving with a BAC between 0.05% and 0.08%. Others feel the provincial sanctions are more appropriate. Canada s federal impaired driving law is considered to be difficult and frustrating to enforce and prosecute. In a national survey, 29% of police acknowledged that they frequently or sometimes took measures other than laying a criminal charge.(12) There is a significant difference in the penalties imposed for contravening provincial regulations versus the Criminal Code. Administrative sanctions such as fines and licensing restrictions are usually imposed for regulatory offences while prison is imposed for criminal offences. The penalty of a criminal record and a possible prison term for a conviction of impaired driving is relatively harsh when compared to the sanctions in place in other countries for driving at over 0.05% BAC. According to the Canada Safety Council 2009 report, there is a higher degree of stigma associated with criminal offences, greater police powers and more severe penalties.(13) This increases the rate at which offenders plead not guilty and go to court to fight the charge. The international trend is for administrative sanctions to begin at 0.05% rather than criminal sanctions. The few international jurisdictions that impose criminal sanctions at 0.05% generally impose penalties that are less strict than those that do so at 0.08%. Currently, Canada has a maximum sentence of 5 years for a first offence. Other jurisdictions have imprisonment at a lower BAC but for significantly shorter periods. All of the jurisdictions that have adopted a 0.08% BAC level treat a violation as a criminal offence but there is considerable difference in how prison time is imposed. Many maximum terms are far shorter. A second offence in Canada results in a mandatory term of imprisonment of 30 days, and 120 days for subsequent offences. Again, these are greater that in most other countries. In Canada a first offence carries a mandatory minimum fine of $1000. This is more like the maximum fine for first offences in the majority of American jurisdictions and exceeds the mandatory minimum fine imposed in Australian jurisdictions. In Canada there is a minimum license restriction period of one year and a maximum of three years for the first offence. For a second offence the minimum goes to two years and the maximum to three. Subsequent offences have a minimum of five years. This is more reflective of the maximum disqualification period for a first offence in other jurisdictions. The divergence of the Canadian penalties with other international penalties has lead ACICR Lowering the Legal Blood Alcohol Concentration for Drivers Page 6 of 10

groups calling for criminal sanctions at 0.05% to seek lesser penalties for the lower BAC levels and first time offenders. Ending Alcohol-Impaired Driving: A Common Approach Report of the Standing Committee on Justice and Human Rights June 2009 40 th Parliament, 2 nd Session The House of Commons Standing Committee on Justice and Human Rights adopted the following motion on February 9, 2009: That the Standing Committee on Justice and Human Rights do a full review of the issue of impaired driving including consideration of: the advisability of lowering the criminal Blood Alcohol Concentration limits; innovative approaches in use in other countries, such as Randomised Breath Testing; the implications of advances in technology to enforce the laws; and the Criminal Code sanctions for impaired driving and how they interrelate with provincial licensing measures.(14) Following the adoption of this motion written briefs and in-person presentations were made by numerous stakeholders. Following is a summary of the findings and the recommendations the Committee reached. Blood Alcohol Concentration Levels The Committee believes that before Parliament should consider amending the law to reduce the criminal BAC from 0.08% to 0.05% it is necessary to ensure that the provincial and territorial administrative frameworks are being used effectively and efficiently. This is appropriate and may be beneficial for provinces with strong sanctions such as license suspensions beginning at 0.05% BAC. However, Alberta and Quebec do not have this in place. Discussions at the federal level regarding BAC levels more or less overlook the situation facing Alberta because it is in the minority regarding sanctions at 0.05% BAC. The Committee is also concerned about the lack of consensus among experts in the field as to whether or not a lower Criminal Code BAC limit would achieve greater safety. Evidence presented to the Committee has shown that while driving skills are impaired at 0.05%, over 80% of fatally injured drivers had BACs over 0.08% and high-bac drivers (those with BACs over 0.16%) represented a disproportionate number of fatally inured drivers. This leads the Committee to conclude that lowering the BAC level will not deter drivers who already ignore the 0.08% limit. The Committee also identifies some practical reasons that would make implementation of a lower Criminal Code BAC level difficult. A lower BAC limit would increase the number of criminal prosecutions in Canada, putting additional stress on the police and legal system. Also, fewer resources would be applied to each case so cases would take longer to resolve, perhaps forcing Crown attorneys to accept plea agreements. The Committee ACICR Lowering the Legal Blood Alcohol Concentration for Drivers Page 7 of 10

concludes that the potentially negative consequences associated with a lower Criminal Code BAC would outweigh any potential traffic safety benefit that may result. Increasing the perception of apprehension and improving the system s efficiency and effectiveness to deal with impaired offenders is preferred to lowering the Criminal Code BAC limit. As such, the Committee makes the following recommendations relating to BAC levels: Standing Committee on Justice and Human Rights Recommendations re: BAC Recommendation 1: The Committee recommends that the Blood Alcohol Concentration level in the Criminal Code of eighty milligrams of alcohol in one hundred millilitres of blood be maintained. Recommendation 2: The Committee recommends that the provinces and territories be encouraged to enhance their efforts in intervening at BACs lower than the Criminal Code level. Recommendation 3: The Committee recommends that tougher sanctions be introduced for repeat impaired drivers. Recommendation 4: The Committee recommends that tougher sanctions be introduced for those drivers with a Blood Alcohol Concentration in excess of 160 milligrams of alcohol in 100 millilitres of blood. Random Breath Testing In Canada, under provincial and territorial legislation, police are allowed to stop a vehicle to check the vehicle s condition, the driver s license, and condition of the driver, including his or her sobriety. However, police may not request a breath sample using an approved screening device unless the officer reasonably suspects that the driver has alcohol in his or her body. As there are no reliable means of detecting alcohol by observation alone, drivers may escape detection which in turn reinforces their drinking and driving behaviour. Random breath testing would increase the real and perceived chances of detection, thereby acting as a deterrent to drinking and driving. It would also reinforce that driving on Canadian roads is a privilege, not a right. Other countries that have introduced random breath testing have realized significant safety improvements. For example, Ireland saw a 23% drop in the number of people killed on its road following its introduction of random breath testing. Random breath testing is very likely to face a challenge under the Canadian Charter of Rights and Freedoms should it be introduced in Canada. This is because the testing would not be based on suspicion, and could be considered unreasonable search and arbitrary detention. Considering the potential value of random breath testing to the safety of Canadian roads, the Committee recommends that random breath testing be put in place. ACICR Lowering the Legal Blood Alcohol Concentration for Drivers Page 8 of 10

Alcohol Ignition Interlock Device An alcohol ignition interlock is a device that is installed in an offender s vehicle so that it requires a breath sample before it will start. If the breath sample shows that the driver exceeds a pre-set limit, the ignition will lock and the vehicle cannot be started. The device is installed at the driver s expense and the period of the driving prohibition is shortened but not eliminated. Interlock devices have been shown to reduce recidivism by 50% to 90%. All provinces have a program for the use of such devices but there is opportunity to increase their use. As such, the Committee recommends that the use of alcohol ignition interlock devices be encouraged. The Committee also recognized a need for a national standard for interlock devices and therefore recommends that the Alcohol Test Committee of the Canadian Society of Forensic Science be authorized to approve alcohol ignition interlock systems for use in provincial and territorial programs. Minority recommendations The decision of the Committee was not unanimous. A minority of Committee members felt contrary to the Majority Report and recommends that the Criminal Code be amended to adopt a national standard of 0.05%. Positions Taken by Canadian Stakeholder Organizations Organizations Supporting a Lower BAC Limit Some of the Canadian organizations that support a lower Criminal Code BAC limit are: Canadian Medical Association Canadian Public Health Association MADD Canada. Organizations that Do Not Support Lowering the Criminal BAC Limit Some of the Canadian organizations that do not support a lower criminal BAC limit are: Canadian Council of Motor Transport Administrators Canada Safety Council Canadian Association of Chiefs of Police The Ontario Association of Chiefs of Police The RCMP The Canadian Bar Association The Traffic Injury Research Foundation (TIRF) The Canadian Automobile Association The John Howard Society of Canada The Elizabeth Fry Societies of Canada. ACICR Lowering the Legal Blood Alcohol Concentration for Drivers Page 9 of 10

Conclusion The Alberta Centre for Injury Control & Research has considered all of this evidence and concluded that the first step to using a lower BAC limit to reduce injury and death from alcohol impaired driving should be to call upon the Government of Alberta to modify its use of administrative license suspensions to include sanctions against drivers found driving with BAC levels of over 0.05%. Beyond the use of a 24-hour license suspension, Alberta has yet to try the use of administrative sanctions to keep drivers with BAC levels in the 0.05% - 0.08% BAC range from driving. Before calling for a change to the Criminal Code, Alberta should see if provincially administered administrative license suspensions and fines can reduce the drinking and driving problem within the province. This would bring Alberta in line with other Canadian provinces and send a clear message to drivers that driving while impaired by alcohol will not be tolerated. References (1) Chamberlain E, Solomon R. The case for a 0.05% criminal law blood alcohol concentration limit for driving. Injury Prevention 2002 Sep;8(Suppl 3):1-17. (2) Alberta Transportation. Alberta Traffic Collision Statistics 2008. (3) Mayhew DR, Brown SW, Simpson HM. The Alcohol-Crash Problem in Canada: 2006. 2009. (4) Alberta Centre for Injury Control & Research. All Terrain Vehicle (ATV) related injuries in Alberta. Injury Control Alberta June 2006;8(10):4. (5) Alberta Transportation. Alberta Traffic Safety Plan, Saving Lives on Alberta's Roads. 2006. (6) Alberta Transportation. Alberta Traffic Safety Plan, 3-yr Action Plan (2007-2010). 2007. (7) Moskowitz H, Fiortentino D. A Review of the Literature on the Effects of Low Doses of Alcohol on Driving-Related Skills. 2000. (8) Fell JC, Voas RB. The effectiveness of reducing illegal blood alcohol concentration (BAC) limits for driving: evidence for lowering the limit to.05 BAC. J.Saf.Res. 2006;37(3):233-243. (9) Simpson HM, Mayhew DR, Traffic Injury Research Foundation of Canada. Dealing with the hard core drinking driver. Ottawa: Traffic Injury Research; 1996. (10) Transport Canada. A Quick Look at Alcohol-related Crashes in Canada. 2008;RS- 2008-09. (11) Mann RE, Macdonald S, Stoduto LG, Bondy S, Jonah B, Shaikh A. The effects of introducing or lowering legal per se blood alcohol limits for driving: an international review. Accident Analysis & Prevention 2001 Sep;33(5):569-583. (12) Jonah B, Yuen L, Au-Yeung E, Paterson D, Dawson N, Thiessen R, et al. Front-line police officers' practices, perceptions and attitudes about the enforcement of impaired driving laws in Canada. Accid.Anal.Prev. 1999 09;31(5):421-443. (13) Helis J. Canada s Blood Alcohol Laws An International Perspective, Update to 2002 and 2006 Reports. April 2009. (14) Standing Committee on Justice and Human Rights. Ending Alcohol-Impaired Driving: A Common Approach. 2009. ACICR Lowering the Legal Blood Alcohol Concentration for Drivers Page 10 of 10