Roadblocked: B.C.'s drunk driving policies caught in legal limbo

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Sergeant Glenn Vermette leans inside a truck window, his head a hand's length away from the driver's face.

"Anything to drink tonight?" the Victoria police officer says, as he eyes the interior of the vehicle.

It's Saturday night on Yates Street in downtown Victoria, and police have set up a seasonal roadblock aimed at nabbing drunk drivers. Sgt. Vermette's literal in-your-face technique, honed over 22 years of conducting these CounterAttack snares, is the first test. "Your nose works wonders," he reminded officers at a briefing earlier in the night.

The current state of B.C.'s drunk driving law means this roadblock is a fragile construction. Even two arrests for drunk driving here could bring the roadblock down for the night because it would tie up most of the officers with paperwork and process.

That is the unintended consequence of a Nov. 30 court ruling. For drivers who are suspected of being over the legal limit for alcohol in their bloodstream, police are forced to choose between time-consuming criminal investigations or just getting as many drunks off the road as possible.

One driver reeks of stale alcohol. He tells the officer he had a couple of beers and is asked to blow into a handheld Breathalyzer. The device shows his blood alcohol level is safely below the legal limit. "Thanks for telling us the truth," Sgt. Vermette tells him, and the driver is on his way.

Had the screening device registered a "warn" – an intermediate rating for a blood-alcohol content between .05 and .08 – he would have been slapped with a three-day driving suspension.

If it flashed a red "fail," he could have faced criminal charges. Then again, if police were really busy, the driver might have gotten off with as little as a 24-hour driving suspension.

"One of the short-term dilemmas we are going to have to deal with is, in theory, you could be treated more harshly by getting a warn than blowing a fail," said Victoria Police Chief Jamie Graham, who heads the B.C. Association of Chiefs of Police Traffic Safety Committee.

Last year, the province rolled out what it billed as the toughest drunk driving law in the country – one that Chief Graham had a hand in crafting. It allowed police to dispense swift justice at the roadside. In half an hour, Sgt. Vermette could have an impaired driver off the road for 90 days.

It also effectively decriminalized drunk driving – just a small number of B.C. drivers have been charged since the law came into effect. But Andrew Murie, CEO of MADD Canada, said the new regime has proven to be a more effective deterrent. "The beauty of the administrative penalties is that they kept more police on the streets to stop people from drinking and driving," he said Friday.

The new law, inevitably, was challenged in court. Mr. Justice Jon Sigurdson of the B.C. Supreme Court ruled last month that drivers who failed a test on a roadside screening device should have a better appeal process.

The province has vowed to amend the law early next spring to restore the full suite of immediate roadside prohibitions, or IRPs. This season, however, police are operating under two different laws depending on a driver's level of intoxication.

Sgt. Vermette's team last weekend included six officers. The first driver to fail a handheld Breathalyzer test was accompanied back to cells by two officers who spent the next three or four hours conducting the more rigorous breath analysis test, fingerprinting, dealing with lawyers and doing paperwork. Had a second driver been arrested for suspected impaired driving, there wouldn't have been enough officers left to maintain the roadblock.

The government, police and officials from MADD talk about how the new IRP program saves lives. The first year under the new regime saw a 40-per-cent reduction in traffic fatalities related to alcohol.

But the 2010 law also appears to have created a more consistent response to drunk driving. Police don't like to say that the punishment for drunk driving in B.C. can be capricious, but the statistics tell a surprising story.

The majority of drivers who were given an alcohol-related driving penalty under the old system, prior to September, 2010, faced only a 24-hour driving prohibition – meaning, police processed the majority of drivers in the intermediate category, reserving the trip to the police station for a more rigorous sobriety test and the rest of the time-consuming criminal investigation for the most dangerous drivers.

"The sad reality is the impaired criminal investigation became so complicated it was almost impossible to get a conviction unless you do a lot of these, and that's all you do," Chief Graham said.

In the five years prior to the new law, an average of 8,000 impaired driving charges were laid each year. And an average of 4,800 of those charges led to a guilty verdict.

But a dramatic switch took place when the new law came into effect. The ratio of drivers found to be over the legal limit, compared to those in the intermediate range, reversed. In the first year under the IRP system, more than 17,000 drivers faced penalties after blowing over .08 in a roadside screening test.

Did British Columbia drivers suddenly change their drinking habits? More likely, police using the administrative penalties were able to consistently treat people who failed the roadside screening test as the law intended.

Solicitor-General Shirley Bond said she intends to make legislative amendments a top priority when the House returns in February. "It's critical that we move as quickly as possible to help clarify some of the uncertainty that exists today," she said in an interview this week.

But at least some of the uncertainty could be resolved on Monday, when Judge Sigurdson hears from the province on its proposed remedy, and from lawyers representing drivers who want punishments imposed under the flawed law revoked.

The province is hoping to limit the scope of the judgment, so that it doesn't include people who refused to provide a breath sample. It also will argue that the ruling should not be applied retroactively.

One thing is certain: The police want the 2010 law restored as soon as possible.

A week before the court judgment threw B.C.'s drunk driving laws into disarray, Sgt. Vermette heard Premier Christy Clark speaking about the success of the IRP regime. He wrote down her words, which he now holds up as a solid commitment to restore the 2010 law: "The greatest risk to our children and the people that we love is not terrorism, it is not a plane crash," Ms. Clark said. "It is a drunk driver."