2012-04-15

Reason to vote Red Redford out of office: an attack on drunk driving is an attack on your rights in disguise with no chance for appeal

As you may or may not know, an Alberta election is underway. As its looking like there's a real solid chance that the Wildrose party can seize the reigns of power away from Alison "Red" Redford and her "Progressive" "Conservative" Party, I felt this would be a good time to bring up some of the disastrous legislation enacted by Red Redford's party.

Today this trip down memory lane takes us to 2011, and the day that the Alberta Government told you that your car could now be impounded and huge fines placed against you for "drinking and driving". You can read the disgusting legislation here.

Soon after Red Redford's ascension to the Premier's chair, rumours began circulating that her government, reacting (this is a common theme to the Red Redford administration) to a single (thought admittedly serious) incident of drunk driving, was planning on "tightening" Alberta's impaired driving laws.

The law as it stands today (the bill has been enacted but not come into force) is that if you were caught with a BAC above 0.08 you were already guilty of a Criminal Code offense. It's worth noting that the driver of the fatal Grande Prairie crash that kicked this silly law off was eventually charged for having a BAC of 0.11. As in, he was already in violation of the law. Yet ironically its another bad law passed by the Stelmach government -- graduated licensing -- which ultimately caused the crash: the person in question was speeding in order to be home before midnight, when it was illegal for him to drive. A person with a regular license, even with a higher BAC, would likely have made it home without a hitch. Now under the current law, if you blow higher than 0.05 and lower than 0.08, your license is suspended for 24 hours. That's it. You aren't driving impaired, you're simply in the "danger zone". The thing about impairment is that it has a lag time: you can be driving at 0.06 and within half an hour be pushed over to 0.09. This is what the suspension was to do: keep people who were legal to drive risking becoming illegal later on the trip. The suspension was already a severe over-reaction: a suspension for 6 hours, rather than 24 hours, would have been more than enough. Of course, when the MADD bitches get their teeth into these laws, bad things like this happen. They're mothers, you know. Like Red Redford is.

So Red Redford, who thinks her job is to be the overbearing mother for 3.2 million Albertans, decided the law had to be changed. But, alas, the problem is that the people already causing the problem aren't the ones she is interested in being overbearing to. You see, Red Redford is a controller: she wants the state to have more and more control over its citizens. If you're driving above 0.08, however, the state already has a far-too-great control over you (previously discussed on this blog here and here). It's worth noting that the original studies that led to drinking and driving laws found that 120 milligrams, not 80, was the dangerous limit for a person's blood-alcohol-count.

80 (ie. 0.08) is indeed an interesting level: that's when a noticeable impact on driving skills is even observed, swamped by other impacts. A person who's angry, for example, is far more dangerous on the road than almost any drunk. A person who's in a depressed or rough emotional state (after just having been dumped, for example) is also far more dangerous behind the wheel than a person blowing 0.09. And the granddaddy of them all? Exhaustion More people are driving tired in a single day than drive drunk in a year, and driving while tired is a cause of roughly 1-in-5 fatal accidents. In fact, it's awfully hard to separate exhaustion from impaired driving: were those kids in GP fully awake? When a person dies in an auto accident, it can be determined how much he's had to drink -- but not how tired he was. How many "drunk drivers" are really just 3am tired drivers with a convenient scapegoat? We'll probably never know.

What we do know, however, is what the Red Redford "Progressive" "Conservative" government has done with this law. From the CBC story on its passing:

The bill doesn't just target motorists who blow over the legal limit. Drivers with a blood alcohol content between .05 and .08 also face penalties, including licence suspensions ranging from three to 30 days and short-term vehicle seizures. They will also have to take part in driver education programs, if they are caught a second and third time.

The province is also focusing on young drivers with this new legislation. Motorists with graduated licences would have their vehicles seized for a week and face a 30-day driving ban if they are caught with any blood alcohol in their system.
Pretty harsh, eh?

Let's start with the young drivers bit, as it will show us an important principle: the actual roadside testing for BAC is fraught with problems. Let's go back to what I wrote just a few days ago: the roadside breath testing device is not infallible. It can give a positive reading when you eat bread. It can give a positive reading if you've been house painting. You can now have your car taken away for weeks and thousands of dollars in fines levied despite not having had a single drop of alcohol to drink. Now if you were to blow 0.08, and you hadn't had a drop to drink: relax! After being arrested, you would be taken to the police station and given a blood test. The blood test, unlike the breath test, is not swayed by paint fumes or sourdough. You get hauled in for 0.09 and you actually have 0.04 or 0.00, you're free to go.

However, if you blow 0.05-0.07 (or 0.00-0.07 if you have a graduated license) then it's a different story. You aren't under arrest. You don't have to submit to a blood test, and instead you're simply handed your fine on the side of the road. No ifs ands or buts. If you blow 0.09, you're released on bail the next day: you'll have a court date but otherwise you should be able to go about your life. If you blow 0.06, the penalty starts right away (and bear in mind this is for something not in the Criminal Code). Your car is gone. Your wallet is lighter. You have to take a stupid course completely unrelated to the "offense" you committed [Note: this is oddly common -ed], and there's basically nothing you can do about it.

There is an appeals process:
(5) If, after conducting an appeal under this section, the Board is satisfied that the person drove a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in that person’s blood was equal to or exceeded 50 milligrams of alcohol in 100 millilitres of blood at any time within 3 hours after having driven a motor vehicle, the Board must confirm the suspension or disqualification.
(6) If, after conducting an appeal under this section, the Board is satisfied that the person did not drive a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in that person’s blood was equal to or exceeded 50 milligrams of alcohol in 100 millilitres of blood at any time within 3 hours after having driven a motor vehicle, the Board must cancel the suspension or disqualification and direct the return to that person of any fees paid to the Government by that person in respect of the appeal conducted under this section.
So while it looks like there's a half decent appeals process, there really isn't: check out this page. That board hearing only takes effect after your second offense, and even then its not guaranteed. That means, and this is where Robert Remington's idiotic attacks on Danielle Smith are so outrageous, that you can have your drivers license and car taken away for three days without having had a single drop to drink and in fact without registering a BAC above 0.05 on any breath test.

Yes, that's the real kicker about Red Redford's 'administrative penalties': you're basically left without an appeal. Let's examine a fun little scenario:

While driving, you come across a checkstop. You have not had a drop of alcohol within the last 15 days. When the swarm-worthy pig shows up to ask about your drinking, he's being a real piece of shit. That's okay, we're in a free country, as long as you're not threatening him, you're allowed to be a jerk back: there is, of course, no right for a cop not to be treated badly while making a stop -- this isn't North Korea. So since he's being an asshole to you, you're an asshole in return. You haven't had a drop to drink, this checkstop is setup on a busy roadway during rush hour and this whole process is slowing you down. So you give this guy a piece of your mind. He pulls out the breathalyzer and tells you to blow into it. You cannot legally refuse, so you blow into it. He looks at the display, tells you that you have just blown a 0.07 and you're going to be losing your car. You're removed from your vehicle (which is summarily towed, with all of its contents still inside), your drivers license is taken away, and you have to take a cab back home. For three days they have your car. You get a $3000 bill from the Alberta government for your troubles, and also are paying the impound and towing fees to get your car back. The very best outcome at this point is that you luck out and they let you have your Board Hearing where you try to appeal the punishment (I have a weird feeling that this is long after the three days have already gone by). The Board decides if witnesses are to be called and if the results of the breathalyzer are to be admitted. If they aren't, it's your word against the crooked cop's. If they are, when the logs indicate that you were sober at the time, you are refunded your $3000 and the towing/impound fees. You're still on the hook for the cab, and the cost of arranging differing transportation for three days, and of course you still lost your car and license for three days. You don't get that time with your license and car back. The asshole cop suffers no repercussions for his actions. He is, indeed, free to do the exact same thing to you the next morning.

Isn't that pretty disgusting? Now consider how this would have been different had you been accused of blowing 0.09 by the shithead cop instead. You lose your license and vehicle. This time though, you end up in court. The results of the breathalyzer have to be submitted: if the police mysteriously lost the logs, you're free. When the logs show you didn't blow above 0.00, you're free. All of the protections of the legal system are available to you. But wait, there's more! Your lawyer just got paid for by the Crown (had you chose him for 0.07, you pay either way). That shithead cop gets reprimanded by the judge: he may even be brought up on charges himself. You're in a position to take legal action against the cop and the police force and receive a settlement for your wrongful arrest and recoup the costs of losing your car for that timespan. You're actually better off being falsely accused of the criminal charge!

Under Red Redford's badly written law, you don't have any legal recourse if this "administrative" penalty is enacted against you unfairly or improperly. You have no defense if the cop on the roadside violated your Charter Rights (funny, I thought Red Redford was so excited about Charter Rights this week for some reason), you have no restitution available to you, and the offending officer risks no punishment. All of this, mind you, for people who aren't the problem in the first place!
As you can see from the New Zealand numbers above, the most dangerous drivers on the road are the ones with... 0.00 BAC. Of the ones driving between 0.05 and 0.10, we're barely talking more accidents than the (likely larger group) driving between 0.00 and 0.05. It's only when you start doubling the legal limit that you really start seeing a swamp in accidents. Remember, this group is the smallest percentage of "impaired" drivers.

As I said above, a sane policy change about drinking and driving in Alberta involves reducing the suspension from 24 hours to 6 or increasing the minimum threshold for the suspension to 0.08 and increasing the minimum threshold for drunk driving to 0.12 (though admittedly the last two is hard to do within the Criminal Code. Still, things can be done). Despite high profile incidents, drinking and driving just isn't that serious a problem in Alberta. The MADD bitches who do freak out about our higher rates are leaving a few important things out of the equation. Firstly, Albertans put far more kilometres on our vehicles than other provinces: our average trip lengths are longer. Our population is younger, which means a higher proportion of drivers (sober or drunk) aren't very good yet. We also drink more than a lot of other areas of the country, meaning that we're more likely to be drunk on the road in the first place (the vast vast vast majority of "drunk" drivers pass you daily on the road without incident -- myself I've driven the streets of Edmonton 'intoxicated' at least 12 times so far in 2012 alone and never caused a single accident). Even if you think drinking and driving is a huge problem, this is a lot of wasted effort to harass the people who already aren't part of that problem. This is just a really badly written law all around.

I can assure you it was 'fixing' a system that wasn't broken from this damning quote from Evan Berger, a PC MLA who spoke about adding drugs to the Alberta impaired driving suspension laws, in this second reading from the 2008 Traffic Safety Amendment Act:
The bill also puts Alberta legislation in sync with recent changes to the Criminal Code that also put the two types of impairment on equal footing. The bill covers a loophole in existing legislation and allows the Alberta administrative licence suspension provisions to be applied to drivers impaired by drugs. This provision is being included as a consequential amendment, ensuring consistency with the drug and the drug/alcohol combination impairment suspensions. As members of this Assembly may know, the administrative suspension was put in place in 1999 and has been very effective in ensuring that impaired drivers are kept off our streets and highways. The administrative suspension also sends a very important message that government takes impaired driving seriously and that there are consequences for this behaviour.
This "very effective program" was apparently an embarrassment to the government just 3 years later. Even Ed Stelmach wasn't far enough to the left for Red Redford's PC gang!

Okay, actually a sane policy change would follow this article by Reason's Radley Balko:
Doing away with the specific charge of drunk driving sounds radical at first blush, but it would put the focus back on impairment, where it belongs. It might repair some of the civil-liberties damage done by the invasive powers the government says it needs to catch and convict drunk drivers. If the offense were reckless driving rather than drunk driving, for example, repeated swerving over the median line would be enough to justify the charge. There would be no need for a cop to jam a needle in your arm alongside a busy highway.


Fortunately, there is a way to punish the "Progressive" "Conservative" Party and Alison "Red" Redford for this (and other) bad pieces of legislation put out by her party since the dawn of the millennium: vote them out.

There is a strong right-wing alternative: Danielle Smith's Wildrose Party of Alberta. The Wildrose Party has come down hard on Red Redford's horribly written legislation (it's why idiotic Calgary Herald columnists won't stop attacking Danielle) and vows to abolish it. That's a step in the right direction, and with a Wildrose government there's a far better chance that strong evidence based policy, with an eye for monitoring our own civil liberties, will finally come to Alberta. Regardless what you think of drunk drivers, they're a small worry on the Alberta highways.

Redford is a menace to our roadways. Voting Wildrose on April 23rd is the cure.