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Liberals May Soften Drunk Driving Law

Barely a year after the premier's DUI arrest, The Tyee has learned B.C.'s government has plans to decriminalize impaired driving offenses.

By Barbara McLintock 30 Jan 2004 | TheTyee.ca

Barbara McLintock, a regular contributor to The Tyee, is a freelance writer and consultant based in Victoria and author of Anorexia’s Fallen Angel.

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The federal government may be planning to decriminalize marijuana possession, but the B.C. Liberal government is considering decriminalizing a different offense - impaired driving.

Solicitor General Rich Coleman confirmed to The Tyee yesterday that the government is looking at a plan that would see the Criminal Code offense of impaired driving replaced by a provincial offense under the Motor Vehicle Act for thousands of people caught driving drunk every year.

Among the ways the law would be softened: those convicted would pay less than half the current fine; and, instead of being prohibited from driving for a year as the law now requires, convicted drunk drivers would be allowed back behind the wheel within 90 days, or right away for trips to and from work.

Coleman stressed that the proposed change has nothing to do with the fact of Premier Gordon Campbell's arrest and conviction for impaired driving while he was on vacation in Hawaii in January, 2003. In fact, the Solicitor General said, the idea was first brought up for discussion by the Liberal administration in late 2002 - before Campbell had even left on his ill-fated vacation trip.

Coleman said it will probably be the fall sitting of the legislature at the earliest before the necessary legislation would be introduced. "If we're going to do it, let's do it right and get it right the first time," he said. He said the legal drafting will likely be relatively complex. As well, the government still wants to hear more public reaction and especially reaction from the law enforcement community before deciding whether for sure to proceed with the move.

According to government documents, the new provincial offense would be expected to carry substantially lower penalties than those mandated by the federal Parliament for the criminal offense of impaired driving.

What decriminalization would mean

Among the differences:

• The fine for the provincial offense would likely be set at about $250. The minimum fine for a Criminal Code impaired conviction is $600.

• The driver would have his or her license suspended for 90 days under the provincial offense. Under the Criminal Code, the minimum period of suspension is one year for a first offense, two years for a second offense, and three years for a third or subsequent offense.

• Someone convicted under the provincial offense would be allowed to obtain a "provisional license" during their period of suspension which would allow them to drive for work purposes. The Criminal Code does not allow any exemptions to the driving prohibition.

• Someone convicted under the provincial offense would not have a criminal record. Someone convicted under the Criminal Code does have such a lifelong record.

• The driver convicted under the provincial offense would be required to put an ignition interlock device in their car for the time of the prohibition and perhaps the nine months following it, and would be restricted to driving that vehicle during that time period. When such a device is installed on a vehicle, the driver has to provide a satisfactory breath sample before the vehicle can be started. The Criminal Code does allow for reduced prohibition periods with the use of such a device if the province has an ignition interlock program in place. B.C. has never had one before. The cost of an ignition interlock system for a nine-month period is expected to be just over $1,000.

Coleman said the goal of the new program would be to bridge the gap in the current system in which a police officer's only choices are to charge a drunk driver under the Criminal Code or to issue a 24-hour roadside suspension. He noted that the number of criminal charges being laid has actually declined in recent years, while the number of roadside suspensions has soared. In 2001, for instance, (the last year for which full statistics are available) the number of criminal impaired charges laid was fewer than 7,000 compared to almost 44,000 24-hour suspensions.

Bid to reduce police and courts workload

The minister said one reason for this appears to be the immense amount of time it now takes for police to complete the necessary paperwork to process a full criminal impaired charge. The total is usually about eight officer-hours for each charge, he noted.

At the same time, more and more of those charged are contesting the charges in court, he said, taking up inordinate amounts of court time. "It's now reached the point where 25 per cent of court time at the Provincial Court level is taken up with impaired trials," he said.

The government's discussion paper says it's hoped that more drunk-drivers would be willing to plead guilty to the provincial offense with the lesser penalties, thus freeing up the valuable court time for other offenses. In fact, the paper noted, Crown counsel now often accept a plea to the provincial charge of "driving without due care and attention" to avoid a trial on impaired charges. "The new offense would be a preferable plea since it would reflect the public safety risk of the underlying behaviour," it says.

The paper notes that studies have shown that a driving prohibition is one of the most powerful tools in preventing repeat drunk-driving offenses, but that no studies have been able to conclude just how long a suspension need be to prove an effective deterrent.

It would be up to both police and Crown counsel to decide which cases would be considered so serious that the Criminal Code charge still ought to go ahead, the paper says. Police could use the new offense if officers believed something more than a 24-hour suspension was warranted, but less than the Criminal Code charge. Crown counsel could also agree to accept guilty pleas to the provincial charge, even if the police had felt the matter serious enough to lay the Criminal Code charge. In deciding whether to accept such a plea, the prosecutors would be expected to look at such issues as how impaired a driver was, whether a crash was involved, and the person's "previous drinking and driving record." Thus it could be available as an option even for repeat offenders.

Coleman said he didn't think the change would send a message to B.C. drivers that impaired driving isn't taken seriously here. Quite the opposite, he said. "I think people will realize we're dead serious because we'll end up dealing with more people" rather than offering them a 24-hour suspension or a plea to driving without due care and attention. He said the change would also be a part of a package that would also focus on greater education and possibly treatment for repeat offenders who clearly have an alcohol problem.

The latest statistics available show that about 30 per cent of passenger car fatalities in B.C. in 2000 involved a driver whose blood-alcohol level exceeded the legal limit.

Barbara McLintock is contributing editor to The Tyee.

This story, broken by The Tyee, was picked up widely by the B.C. radio and television media on Friday. To see the CBC website follow-up, and hear Tyee contributing editor Barbara McClintock's interview with Mark Forsythe of the B.C. Almanac show, click here.  [Tyee]

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