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The Case for a 0.05% Criminal Law Blood Alcohol Concentration Limit for Driving Iii3 Crashes, Driver Fatigue Crashes Most Often Occur During Late Task

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The Case for a 0.05% Criminal Law Blood Alcohol Concentration Limit for Driving Iii3 Crashes, Driver Fatigue Crashes Most Often Occur During Late Task iii1 The case for a 0.05% criminal law blood alcohol Inj Prev: first published as 10.1136/ip.8.suppl_3.iii1 on 1 September 2002. Downloaded from concentration limit for driving E Chamberlain, R Solomon ............................................................................................................................. Injury Prevention 2002;8(Suppl III):iii1–iii17 anada established its current 0.08% Crimi- the Committee expressed about a 0.05% BAC nal Code blood alcohol concentration (BAC) limit were either unfounded or exaggerated, and Climit for drivers in 1969*.12At the time, this its conclusion on the issue is contrary to the was a substantial improvement, as it established a weight of evidence on the traffic safety benefits of per se BAC limit under the criminal law and lowering BAC limits. In our view, the 0.05% issue required impaired driving suspects to provide warrants far more thorough consideration, par- breath samples. However, in the more than three ticularly in Canada. decades that have followed, breath testing instru- Despite the progress that has been made, ments have become more accurate, public atti- impaired driving remains, by far, the leading tudes toward impaired driving have hardened, criminal cause of death7–9 and one of the leading and scientific research has established that criminal causes of injury710 in Canada. In recent impairment begins at levels below 0.08%. In years, alcohol related crashes have claimed response, the international trend was and contin- between two and three times as many lives annu- ues to be to reduce per se BAC limits to 0.05% or ally as all violent crimes combined.9 Alcohol lower. The legal BAC limits of various countries related crashes have been estimated to cost Cana- are not always uniformly reported. The legal limit dian society between 1.5 and 10 billion dollars a is reported to be 0.05% in numerous countries, year.11 Opinion poll data indicate that millions of including Argentina, Australia, Austria, Belgium, Canadians continue to drink and drive, many in Bulgaria, Croatia, Denmark, Finland, France, Ger- situations when they thought they were over the many, Greece, Iceland, Israel, Italy, Macedonia, legal limit.12–14 As we shall discuss, Canada already the Netherlands, Norway, Portugal, Slovenia, and lags far behind the world leaders in traffic safety Spain. Russia and Sweden have a legal limit of in terms of the high percentage of impairment 0.02%, and Poland has a limit of 0.03%. Finally, among its fatally injured drivers. the official limit is reported to be 0.00% in the The purpose of this paper is to review the Czech Republic, Hungary, Malaysia, Romania, evidence regarding the potential benefits of creat- Saudi Arabia, and Turkey, while Japan’s limit is ing a 0.05% Criminal Code offence in Canada. 3–5 0.00% in practice. Although the exact details must be left to the leg- http://injuryprevention.bmj.com/ Nevertheless, the Canadian federal govern- islative process, what is envisaged is a federal ment has been reluctant to follow this inter- summary conviction offence that would include: national trend. In 1999, the House of Commons ticketing and other streamlined procedures for Standing Committee on Justice and Human processing cases; the option of entering a guilty Rights received numerous submissions support- plea without a court appearance; substantially ing a 0.05% BAC limit. However, in its final report, lower penalties than the existing 0.08% BAC Toward Eliminating Impaired Driving,6 the Standing offence; and provisions to protect first time 0.05% Committee rejected the proposals to lower the BAC offenders who do not reoffend from having a Criminal Code BAC limit to 0.05%. The Commit- permanent criminal record. tee’s reasons included: “a lack of scientific Unlike the situation in many jurisdictions, no evidence that there would be any value in lower- single level of government in Canada has ing the legal BAC limit”, a “lack of consensus comprehensive constitutional authority over im- on October 5, 2021 by guest. Protected copyright. among experts in the field”, “a loss of public sup- paired driving. Under the Constitution Act, 1867,15 port”, and “additional enforcement burdens”. the federal government may enact criminal Finally, concerns were expressed that there would offences prohibiting various aspects of drinking be insufficient police and judicial resources to and driving, but has no authority to regulate cope with a lower BAC limit, because it would driving or licensing. Even if the federal govern- “more than double the number of drivers who ment wanted, it could not impose administrative would be liable to prosecution”. licence suspensions on drinking drivers or inter- Unfortunately, the Committee failed to care- fere with the provinces’ and territories’ adminis- fully analyze the 0.05% issue or consider the trative licence suspension initiatives. In turn, the growing body of relevant research. The concerns provinces and territories have broad authority over roads, driving and licensing, and can create offences in relation to these matters. However, the ................................................. See end of article for provinces and territories do not have the constitu- authors’ affiliations *Defines the offence of impaired driving to include both tional authority to create crimes. ....................... driving while one’s ability to do so is impaired by alcohol Professor Robert Solomon, or drugs (s 253(a)) and driving with a BAC above 0.08% Faculty of Law, University (s. 253(b)). Although drinking drivers with BACs below ................................................. of Western Ontario, 0.08% may be convicted under s 253(a), this is Abbreviations: BAC, blood alcohol concentration; FARS, London, Ontario, Canada uncommon. Consistent with usual practice in Canada, we Fatality Analysis Reporting System; GAO, General N6A 3K7; have used the term “impaired driver” in a narrower sense Accounting Office; NHTSA, National Highway Traffic [email protected] to refer to drivers with BACs above 0.08%, unless Safety Administration; TIRF, Traffic Injury Research ....................... otherwise indicated. Foundation www.injuryprevention.com iii2 Chamberlain, Solomon The proposed criminal 0.05% offence would not replace, but (A) Vision rather would complement, both the existing Criminal Code Studies consistently show that visual functions are adversely Inj Prev: first published as 10.1136/ip.8.suppl_3.iii1 on 1 September 2002. Downloaded from impaired driving offences and the provincial and territorial affected at BACs as low as 0.03%.19 Because alcohol generally short-term administrative licence suspension legislation. Thus, has a relaxing effect on muscles, it impairs the ability to control for example, an Ontario driver whose tested BAC was 0.07% the fine, discrete muscles that move and focus the eyes.20 Spe- would be subject to both a 12 hour licence suspension under the cifically, BACs between 0.03% and 0.05% interfere with volun- provincial Highway Traffic Act16 and a criminal charge of driving tary eye movements and impair the eyes’ ability to rapidly track with a BAC above 0.05% under the federal Criminal Code.17 a moving target.21 The ability to track objects is critical to driv- This paper is divided into four sections. The first briefly ing, as drivers must be able to focus on certain objects and track examines the research on the adverse effects of small amounts them as the objects and their own vehicles move. A driver’s of alcohol on driving related skills and abilities. The second sec- ability to focus is impaired by alcohol’s relaxing effect on the tion reviews the studies on the increased relative risks of fatal muscle that controls the shape of the eye’s lens.20 crashes among drivers at various BAC levels. In the third Further, research indicates that drivers who have been drink- section, we discuss the real world impact of lowering various ing move their eyes less frequently and fixate on one area for administrative and criminal BAC limits in Canada and abroad. longer periods of time. Visual acuity is hampered because alco- The fourth section addresses the arguments, drawn primarily hol reduces the amount of oxygen in the bloodstream, and from the Committee Report, that have been raised in opposition thereby impairs the sensitivity of the cones at the back of the to introducing a 0.05% Criminal Code BAC offence in Canada. eyeball, which help to transmit colour images from the retina to In the conclusion, we argue that the evidence supports the the brain. Drinking drivers may also suffer from double vision, introduction of a 0.05% Criminal Code offence. Contrary to the as their relaxed eye muscles impair the eyes’ ability to work Committee Report, we suggest that a 0.05% Criminal Code BAC together. This affects the driver’s ability to judge distance, which limit is an essential element of any meaningful reform of has been found to be impaired at BACs as low as 0.047%.19 As a Canada’s federal impaired driving laws. Although the issue result of this decreased depth perception, drivers may have dif- falls outside the scope of this paper, in our view the other ficulty changing lanes, passing other cars, or determining essential element is the enactment of broader and more 20 whether a vehicle is moving toward or away from them. efficient police powers to stop vehicles, detect drinking drivers, Alcohol can also affect a driver’s night vision.22 Drivers who and gather evidence of impairment. have been drinking have a slower recovery rate from headlight Given the unique constitutional division of legislative powers glare, as it takes longer for their pupils to enlarge again after between Canada’s federal and provincial governments, there is being exposed to bright light.20 The alcohol-reduced sensitivity no exact parallel that can be drawn from the international of the rods and cones exacerbates the already difficult task of experience with lower BAC limits.
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