Yes. You read the title correctly.
No. I'm not crazy. Although one might argue that point considering that I am about to propose a solution to the intractable problem of impaired driving that would, if implemented, wipe out a large percentage of my practice.
When the typical impaired driving client approaches me they invariably express one or both of the following two concerns: first, they want to avoid the stigma of a criminal record and second, they want to keep their driver's licence. As the law now stands, neither of these objectives are possible without winning the case outright. If police have made some glaring procedural error in the course of the arrest, you may be able to 'pull a Jaffer' and negotiate a withdrawal of the criminal charges in exchange for a plea to the Highway Traffic Act offence of Careless Driving, but for the vast majority of individuals your choices are to suck it up or fight the case at trial.
Who is the so-called "typical" impaired driver? I can only speak from the experience of my own practice having represented hundreds of such cases over the years. They are mostly middle class men, employed, with no prior criminal record of any kind, who have a blood alcohol concentration of between .09-.15 (with the legal limit being .08), whose driving resulted in no injury or damage.
Decades of public outrage and lobbying by organizations like M.A.D.D. have led to a single consistent legislative response to the problem of impaired driving: tougher penalties. While one could argue that strict consequences have contributed to a steady decline in the number of impaired drivers over the year, they have also had the unintended consequence of creating a multi-million dollar industry dedicated to arguing these cases in our increasingly over-burdened courts. Impaired driving is unique in criminal law as being the only charge in the Criminal Code in which it is legally impossible to motivate an accused to plead guilty. In every other case, the Crown always has at their disposal the option of offering some form of reduced sentence in exchange for an early guilty plea that strongly encourages an admitted offender to make his peace with Her Majesty. Conversely, in the typical impaired driving case I described above, I routinely must advise my clients that they have nothing to lose by going to trial and nothing to gain by entering a guilty plea. This is a function of the draconian mandatory minimum penalties now imposed. No matter what the circumstances of the offender, a first-time impaired driver who is found guilty cannot do better than a $1000 fine and a one-year licence suspension. With the mandatory minimum being so severe, I also advise my clients that it would be virtually unheard of for them to be sentenced to anything more than the minimum should they take their case to trial and lose. Thus, a protracted trial is virtually guaranteed.
Funny things happen at trials. Courts get overbooked. Witnesses fail to show up. Paperwork gets misfiled. Charter defences succeed. Roughly 50% of those who take their impaired driving case to trial end up being acquitted (according to the Traffic Injury Research Foundation's 2007 report which admittedly predates the recent removal of a key impaired driving defence that I expect will lower that acquittal rate somewhat). The rest get sentenced to the same mandatory minimum they would have received had they plead guilty ten months earlier when they were first charged.
If you're really interested in making a further dent in the number of people who drive drunk, M.A.D.D. and others will have to admit that constantly ratcheting up the penalties will only encourage even more people to roll the dice at trial. The current legislative climate appears focussed on making sure no one can win a trial by eroding all the legal protections afforded to citizens in other types of cases. Current proposals include allowing random roadside breath screening and eliminating the right to counsel before breath tests. Rather than encouraging the wholesale dismantling of individual rights and freedoms in the name of slaying the drunk driving dragon, allow me to propose a more thoughtful solution.
Take the typical impaired driver I described earlier (who forms the overwhelming majority of people in the system on these types of charges) and remove them from the criminal code altogether. Enact individual provincial regulations under the respective Highway Traffic Acts to deal with the first-time drunk driver who causes no injury or accident and has a blood alcohol reading of less than double the legal limit. The penalty under this new provision would still be a minimum $1000 fine (heck – double it if you really want to swell government coffers) along with a term requiring offenders to install – at their own cost – an ignition interlock device (IID) in any vehicle they will be operating for a period of one year. The IID is not new. These devices are essentially mini breathalyzers installed in a car that require the driver to provide a sample proving sobriety before being able to start the vehicle.
Am I being soft on crime? This proposal would actually see an increase in the number of people being monitored for impaired driving as all those thousands of people who are now taking their chances at trial and winning would finally be motivated to enter an early guilty plea. Rather than finding themselves deported, unable to travel, or ineligible for work due to a criminal conviction, they would instead be found guilty of a serious traffic offence. Their insurance premiums would skyrocket as is already the case but their lives wouldn't be ruined. For those clients who absolutely need to drive (usually for employment purposes), they would be given the opportunity to do so without compromising public safety one iota. In fact, each time they stepped into their car and blew into the IID, they would be reminded of just how serious their actions were.
You can't accuse me of being a self-serving bleeding-heart defence lawyer either. If this proposal were to be adopted, overnight I would lose virtually all of my impaired driving business. The only reason people pay me thousands of dollars to take their cases to trial is to avoid the criminal conviction or to keep their licenses. Now, they would be able to do both without endangering the public in any way.
The system would benefit dramatically by a massive increase in the number of guilty pleas freeing up court and crown resources to target more serious impaired driving cases and other criminals who pose an even greater risk to the public.
A rational discussion of the benefits of such an unconventional proposal from our lobbyists and politicians? I'd drink to that – and take a taxi home from the meeting.
Interesting viewpoint. I'm sure you'll get a reaction.
In the years I practiced criminal defence law (those days are behind me now with my PI practice my only contact with impaired drivers is when I sue them…) I can share your view of the general demographic of impaired driving clients and further their motivation to hire a lawyer. If the threat of a criminal record was replaced with a strictly regulatory-offence type of a conviction that would surely reduce the number of folks fighting the charges.
I look forward to the discussion your post will trigger.
Lots of sense here, but the government currently in charge of the Criminal Code never met a human failing it didn't want to punish, and it loves mandatory minimum sentences. Combine the general viciousness of the government with the cries of unsubtle outrage by those who think the proposals would be soft on the drivers (because they might be allowed to hope for a normal life at some future point, rather than having the criminal record with them forever), I would not bet much money on the proposals being adopted.
I suppose if our prison system becomes as chock-full as California's – and the feds seem to have that ambition – then maybe budget pressures might lead, here as apparently there, to common sense pushing its way through the concrete walls…
Good luck.
A most provocative essay, Edward. Thanks for writing it.
John's comment raises an interesting point. Why does Ontario not amend the Highway Traffic Act as Edward suggests, even in the absence of a parallel federal move to amend the Criminal Code? Edward points out that in the absence of a strong criminal case, Crown prosecutors sometimes opt to negotiate a plea bargain to a Highway Traffic Act offence instead. Might not such plea bargains be more common were there tougher penalties available under that act, such that the accused doesn't appear to be \pulling a Jaffer\, as Edward described it?
Thank you for thinking of this approach and being brave enough to have it published. It is indeed thought-provoking and reasonable. I would ask whether you might consider running for office, but you appear over-qualified. Pity.
Very thought provoking.
I wonder if there have ever been justice statistics collected that would support this theory: The typical clients you describe above who have gone through a successful defence to a DUI charge never drink and drive again.
I think it would be a pretty hard go for a government (especially one following this current "mandatory minimum sentence/throw everyone(except-a-buddy-of-ours) in the slammer/there is only black and white not grey blue pink yellow or orange" minority) to convince a population that decriminalizing DUI except in the case where it leads to measurable harm to person or property is a good idea.
Just because it would be difficult to explain and promote doesn't mean that it isn't the best solution.
I was just recently charged with impaired driving and really didn't understand the consequences previously. I just didn't really think about them. My life has changed.
In doing some research, I came across this post and it's a very interesting proposal.
Many years ago, I worked in law enforcement and after much thought, I came to the conclusion that a lot of things, especially drugs, should be decriminalized and managed differently. Of course, many thought I was crazy at the time – but now there is even LEAP – Law Enforcement Against Prohibition with many members who see the downside of criminalizing so much.