Home > Miscellany > A “legal limit” for DUI penalties

A “legal limit” for DUI penalties

In my first “Around the Mediverse” post, I linked to a post at Legal Satyricon that pointed out that driving under the influence of alcohol is a victimless crime, to the extent that not all drunk drivers will cause or be involved in collisions.  I was reminded of that when I saw today’s report that the Canadian province of British Columbia is rolling out tough new penalties for impaired driving, accompanied by the sort of competitive rhetoric that’s usually saved for discussions of equalization payments and/or the Brier.

According to the CBC,

Under the new rules, drivers caught with a blood alcohol level over .08 or those who refuse to provide a breath sample at the roadside will face an immediate 90-day driving ban and a $500 fine.

As well, they will have their vehicles impounded for 30 days and may also face criminal charges, said de Jong in a statement.

Drivers caught once with a blood alcohol level in the warning range — between 0.05 and 0.08 — will face an immediate, three-day driving ban and a $200 fine. Those caught twice in a five-year period face a seven-day ban and a $300 fine; and those caught three times over five years face a 30-day ban and a $400 fine.

Drivers who blow once in the “fail” range or three times in five years in the “warn” range will be required to participate in the Responsible Driver Program. They must also use an ignition interlock device, which tests a driver’s breath for alcohol every time they operate their vehicle, for one year.

What bothers me is the Canada-wide pattern, of which this is the latest manifestation, of increasing penalties for falling in the “warn” range, and the increasing length of administrative license suspensions and vehicle impoundments at all levels.

Don’t get me wrong.  I’m not a fan of drunk driving, and I’m fully aware of the damage caused by drunk drivers.  But as the post at Legal Satyricon points out, the penalties are starting to become grossly disproportionate to the offense.  And there’s a whole world of pain and damage caused by drivers who are young, old, tired, high, distracted, simply unfit, or unlucky.  As with any of these other factors, driving drunk increases the risk of a collision, but it’s no guarantee.  Penalties should reflect this.

Of special concern to me is the increased penalties for testing in the “warn” range; namely, the range of BAC that’s considered “high, but not illegal yet.”  I can understand a short (12-24 hour) administrative suspension to keep them off the roads while they’re in that state, but if it’s not illegal, even that’s a stretch.  I can even understand a fine.  I can also understand fines and slightly longer suspensions for refusing a breath sample.

Increasing penalties for the “warn” range and long-term vehicle seizures both strike me as forays from the safe territory of the corrective/precautionary into the realm of punitive measures beyond the scope of what should be allowed to a process with the due process safeguards of a traffic ticket.

I’m ashamed to say that I’m less familiar with Canadian constitutional issues and thought than I am with their American counterparts, but this still strikes me as a move that might exceed the province’s authority.  Specifically, the criminal law is an area reserved exclusively to the federal government.  While the provinces can pass laws and implement regulations and penalties to enforce things like highway safety, I would consider these changes to be criminal law legislation, though I’m sure reasonable people could disagree.

Canadian constitutional law can be fun.  There exists, for instance, the “pith and substance” approach (i.e. “use your common sense”) for evaluating whether legislation exceeds the bounds of authority given to the level of government in question (evaluating US Commerce Clause defences of the PPACA’s constitutionality using this approach would be hilarious!).

Again, I know little about these topics, but there is some interesting case law on the subject of highway regulations at the provincial level.  Though I doubt it will happen, I hope the Canadian Supreme Court takes up these issues in the near future.  The competition for the strictest, most punitive DUI penalties in Canada is a race to the bottom, constitutionally and morally.  If common sense won’t put a stop to it, with any luck the judicial system will.

Update (afternoon of April 28):  looks like I might not be totally off-base after all.

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