Drinking-Driving Countermeasures: The Case for Ignition Interlocks by Ian R. Marples, B.A., LL.B. President, Guardian Interlock Systems Corp. Mississauga, Ontario1 Impaired driving is Canada’s most prevalent and, in many respects, its most serious crime. Incredibly, drunk drivers in this country cause more deaths, injuries and destruction than all murderers, muggers, rapists and robbers combined2. Judging from statistical indicators such as charges laid and fatal accident crashes involving alcohol, the drinking-driving problem has diminished somewhat since it was last addressed in major amendments to the Criminal Code in 1985. However, according to the Canada Safety Council, the incidence of impaired driving may actually have increased3. One thing is clear—impaired driving in Canada continues to manifest itself at levels that remain socially, politically, and economically unacceptable. Over the years, numerous federal and provincial laws have been enacted to combat drinking and driving in Canada. However, many of these laws reflect assumptions that arguably are more myth than reality and, as such, are inherently flawed. These include assumptions that: • first time impaired driving offenders are fundamentally different from repeat offenders; • enforcement of anti-drunk driving laws will be effective and consistently applied; • public advertising and awareness campaigns directed toward reducing impaired driving will have a positive effect at all levels; • license suspensions imposed for impaired driving offences will be complied with; • traditional legal sanctions such as fines, license suspensions and incarceration will be an effective deterrent against impaired driving recidivism; and • increasing the severity of traditional legal sanctions for impaired driving offenders will enhance the deterrent effect. Impaired driving laws frequently draw important distinctions between first time drinkingdriving offenders and repeat offenders, as if these groups were fundamentally different. In fact, virtually everyone caught drinking and driving these days is a repeat offender. If there is any doubt about this statement, consider that researchers estimate a person can drive in an alcohol-impaired condition between 200 and 2000 times before being arrested. On this basis, legislative distinctions between so called first offenders and repeat offenders are really just perpetuating a myth. Measured against reality, the distinction between these groups is, at best, blurred. Today’s impaired driving offenders are not just casual social drinkers who inadvertently made an error in judgment. That may have been true to some extent in the past. But a succession of public education and awareness campaigns over the past decade means it is no longer true today. People have gotten the message--and responsible people 1 2 3 Presentation to the House of Commons Standing Committee on Justice and Human Rights, Ottawa, ON, March 9, 1999. Source: Against Drunk Driving (ADD) Canada web site @ http://www.add.ca Canada Safety Council. Why have impaired driving charges dropped? Safety Canada vol. XLII, no. 1. January, 1999. 2 have listened. In the face of widespread awareness about the dangers of drinking and driving, impaired driving offenders today are, by definition, people who have demonstrated by their conduct that they are unwilling or unable to make responsible decisions about driving after drinking. By and large they are problem drinkers—people who cannot control their consumption, or who are alcohol dependent. The conduct of drinking-driving offenders, both pre- and post-conviction, also indicates that they are not deterred by traditional legal sanctions such as fines, license suspensions and incarceration. Because of their alcohol problems, the integral part driving plays in the lives of most adults today, and a very low probability of detection on any given occasion, they are likely to continue driving after consuming excessive quantities of alcohol. What about recent moves in some jurisdictions to increase license suspension periods? If suspending the licenses of convicted impaired drivers is unlikely to prevent them from re-offending, can’t we at least keep them off the road longer? The answer, unfortunately, is no. Although there is evidence of high compliance with short suspension periods, this is not the case with longer suspensions. In fact, there are indications that at some point license suspensions tend to become counter-productive as more and more people not only drive under suspension4, but also fail to apply for reinstatement at the end of the suspension period5 and are thus permanently lost from the system of legal licensing and regulation. Briefly put, it is unrealistic to expect that people who have proven themselves to be irresponsible about driving after drinking and undeterred by the threat of a lengthy license suspension will be any more responsible about complying with such a suspension after it has been imposed or deterred by an even longer suspension if caught again. On a more general level, it would appear that underlying the assumptions discussed above are more fundamental notions that place reliance on responsible decision-making and self-control by persons who could be characterized as deficient in those very areas. Unfortunately, measures based on such notions cannot be expected to achieve a high level of effectiveness and, therefore, unless governments are prepared to commit vast resources to enforcement it is likely that the problem of impaired driving will persist for the foreseeable future. Against this backdrop, ignition interlocks represent a promising new initiative in the struggle against impaired driving. An ignition interlock is basically a sophisticated breath alcohol testing instrument which is installed in a vehicle in a way that links its operation to that of the ignition, starter, electrical and other on-board systems. The user must take and pass a breath test before the vehicle can be started or driven. Re-tests are also required at random times as long as the engine is running. In the event that a re-test is not taken, or alcohol is detected above a preset limit, an alarm is activated and remains 4 5 Peck, R.C., Wilson, R.J., and Sutton, L., Driver license strategies for controlling the persistent DUI offender. The Transportation Research Board Workshop on the Persistent Drinking Driver. Background Paper. Woods Hole, Mass. July, 1994. rd Voas, R.B., and Tippetts, A.S. Unlicensed driving by DUIs – A major safety problem? Presented at 73 Annual Meeting of the Transportation Research Board. Washington, D.C., 1994. 3 on until the driver passes the breath test or pulls over and shuts off the engine. The interlock device includes features designed to monitor and record data on critical functions and events, guard against tampering or circumvention attempts, and ensure that users comply with supervision and reporting requirements prescribed by jurisdictional administering authorities. In this regard, the use of ignition interlocks by impaired driving offenders typically involves participation in a program of close monitoring and supervision, administered either by court officials pursuant to a probation order or by driver licensing authorities as a condition of reinstatement of driving privileges. In criminal justice terminology, ignition interlocks constitute a form of incapacitation which prevents impaired driving by physically stopping a vehicle from being operated if the intended driver has had too much to drink. With interlocks, the focus is primarily on controlling behaviour in the interests of public safety. This approach does not involve assumptions grounded in the kind of questionable notions about self-control or responsible decision-making that seem to underlie most drinking-driving countermeasures. On the contrary, interlocks imply a practical recognition that the type of offender we have been referring to will probably continue trying to drive after drinking in spite of the risks or, apparently, the consequences. Viewed in these terms, interlocks make sense as an effective way to control drinking-driving behaviour and prevent further offences. If it makes sense to use ignition interlocks to prevent impaired drivers from re-offending, then it also makes sense from a traffic safety perspective to get these offenders on an interlock program at the earliest opportunity. This is not to suggest that interlocks ought to replace driving prohibition orders under the Criminal Code or license suspensions imposed under provincial legislation, or even that their duration should necessarily be reduced. Such measures serve to underline society’s determination not to tolerate, and to protect itself from, persons whose behaviour represents an unacceptable level of risk and all too often results in tragedy. On the other hand, acknowledging that the meaning of many terms undergo evolution in response to changing conditions or circumstances, it is suggested that recent developments in interlock technology afford both an opportunity and a reason to reconsider what terms such as licence suspension should mean and entail in regard to impaired driving offenders. At the provincial level, a growing number of jurisdictions have adopted a graduated approach to reinstatement for impaired driving offenders which includes an interlock component at an intermediate stage6. In these jurisdictions, persons whose driver’s licences have been suspended or revoked for drinking-driving offences under the Criminal Code may become eligible for limited driving privileges under an interlockrestricted permit upon expiry of the mandatory driving prohibition order imposed under subsection 259(1) of the Code even though, technically, they continue to be under suspension or revocation. In many cases an interlock-restricted permit allows the offender to obtain or maintain employment (particularly in areas that are not well served by public transit), and this in turn can have positive spill-over effects in terms of family life and reduced social welfare costs to mention just a few examples. At the same time, because the interlock is a highly 6 Alberta has had an ignition interlock program since 1990 and Quebec since December, 1997. An interlock program is also anticipated in the Yukon Territory, where enabling legislation was recently enacted. 4 effective means of control (i.e. people can drink and they can drive, but they cannot combine the two activities), the public is protected from further incidents of impaired driving. Under the scenario just described, the offender is kept on an interlock program for at least the remainder of the original suspension period, but possibly longer depending on performance and compliance with program conditions. In fact, it appears that at least one jurisdiction7 is moving in the direction of open-ended interlock programs under which offenders are required to keep the interlock in their vehicle until they can demonstrate to the satisfaction of administering authorities that it is no longer needed in the interests of public safety. Apart from control, two other potential benefits also point in the direction of early interlock use. The first is that interlocks are a very effective screening tool. As an adjunct to assessment, reports of events that are monitored and recorded by the interlock device can be of great assistance in evaluating the subject’s drinking problem and determining what type of therapeutic intervention might be most appropriate. Secondly, interlock use over time, and particularly when combined with treatment, is showing promising results in terms of long term behavioural change—helping impaired driving offenders develop more responsible patterns of behaviour in relation to drinking and driving—and this of course means a reduction in recidivism8. It is submitted, therefore, that serious consideration should be given to ignition interlocks as a sanction—perhaps even the principal sanction—for most drinking and driving offences under the Criminal Code9, with particular attention to specific measures directed toward early, widespread and, for those who need it, long-term use. Admittedly many such measures will involve and in some respects, depend upon, complimentary action taken at the provincial level. For example, even if Parliament were to abolish driving prohibition orders in favour of mandatory probation tied to participation in a recognized judicial or administrative interlock program, provincial authorities could still effectively thwart efforts to encourage interlock use at an early stage by postponing eligibility until after completion of a lengthy licence suspension period. It is suggested, however, that in spite of such obstacles, there is nevertheless an opportunity through careful planning and drafting of provisions under the Criminal Code to establish a flexible legislative framework to both accommodate existing provincial differences and at the same time encourage progress toward an approach that places greater emphasis on controlling as opposed to simply punishing drinking-driving behaviour. Although not intended to be comprehensive, recommended changes might include: • Providing for conditional driving prohibition orders, pursuant to which driving would be prohibited unless the offender participated in and complied with the conditions of an interlock program recognized and approved by the court; 7 In Alberta, decisions of the Driver Control Board to extend the term of interlock use, or permit its removal, typically involve a risk assessment analysis. Beirness, D.J., Marques, P.M., Voas, R.B. and Tippetts, S. Evaluation of the Alberta Ignition Interlock th Program: preliminary results. Alcohol, drugs and traffic safety: proceedings of the 14 International Conference on Alcohol, Drugs and Traffic Safety. Annecy, France, 1997. Exceptions would include offences involving injury or death. 8 9 5 • • Mandatory probation for all impaired driving offenders, with standard conditions to include a restriction on driving unless pursuant to and in compliance with an approved interlock program; Extending the term of probation orders in impaired driving cases to a point well beyond the expiration date of applicable provincial licence suspension periods, with a stipulation calling for a review hearing prior to expiry of the probation order. At the hearing offenders who had not participated in or complied with conditions of an approved interlock program could be required to show case why they should not be re-sentenced on the original charge; Providing, in appropriate cases, for probationary terms of indefinite duration in order to track not only participation in an approved interlock program but also continuing compliance with program conditions; and Permitting conditional discharges for first offences, with a stipulation that terms of probation would include mandatory participation in and successful completion of an interlock program approved by the court. • • In summary, ignition interlocks are not a panacea. However, a growing body of evidence based on experience to date in Alberta, Quebec, and 37 U.S. states, supports the contention that widespread use of interlocks among drinking-driving offenders throughout Canada would very likely result in a significant improvement in the overall problem.