Canada’s Blood Alcohol Laws —
an International Perspective
Professor David M. Paciocco,
Faculty of Law, University of Ottawa
This report addresses claims that Canada is lagging
behind other countries in its fight against impaired
driving by maintaining a .08 BAC limit in its Criminal
Code. It provides a reference for government decision
makers considering policy alternatives, and enables
the public and stakeholders to validate statements
about impaired driving laws.
March, 2002
Canada Safety Council
1020 Thomas Spratt Place, Ottawa, ON K1G 5L5
www.safety-council.org
CONTENTS
I.
II.
III.
IV.
V.
VI.
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Permissible BACs in Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. The Criminal Code Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Provincial Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Permissible Blood Alcohol Levels Vary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The Trend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Divergent Responses to BACs - Comparing Apples and Oranges . . . . . . . . . . . 17
A. Criminal and Administrative Responses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
B. The Canadian Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
C. Criminal and Administrative Responses Internationally . . . . . . . . . . . . . . . . . 22
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TABLES
1.
2.
3.
4.
5.
6.
7.
8.
9.
Provincial BAC Levels And Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Lowest Permissible BAC Levels by Country . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Lowest Permissible BAC Breakdown Organized by Country (Canada Excluded) . . . . . . 10
Ordinary Driver Permissible BAC Breakdown Organized by Jurisdiction Within
Comparison Countries (Canada Excluded) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Point at Which Jurisdictions Adopted BACs of .05 or Lower . . . . . . . . . . . . . . . . . . . . . 12
Permissible BAC Levels in The United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
First Offences in .05 Jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Potential Penalties at .06 for .05 Jurisdictions And Canada: First Offenders . . . . . . . . . 26
Potential Penalties at .09 for All Comparison Jurisdictions: First Offenders . . . . . . . . . 27
This report was prepared for the Canada Safety Council by
Professor David M. Paciocco,
Faculty of Law, University of Ottawa
Available as a PDF on the Canada Safety Council’s Web site (www.safety-council.org).
© 2002, Canada Safety Council
Canada’s Blood Alcohol Laws —
an International Perspective
Professor David M. Paciocco,
Faculty of Law, University of Ottawa
I.
Introduction
The view has been expressed that the permissible blood alcohol concentration (the “BAC”) in the
Criminal Code of Canada for those who operate, or are in care or control of motor vehicles, should be
lowered from its current level of .08.1 The most commonly recommended BAC is .05. This paper,
commissioned by the Canada Safety Council, assesses whether there are relevant international
trends in the BAC legislation of designated countries that could assist in determining whether
Canada should move to a .05 limit. The 20 designated countries selected for examination have
political and legal traditions that are widely comparable to those in Canada.2
When the BAC legislation in these 20 comparison countries (and in other countries) is
examined, speaking generally, it is possible to draw a number of conclusions, including:
C
“almost all industrialized countries have adopted the principle of a permitted level,
the value of blood alcohol above which the driver is committing an offence
(regardless of signs of impairment)”;3
1
The reference to .08 is to a blood alcohol level of 80 milligrams of alcohol in 100 millilitres of blood,
or 80 grams per cent, as the Americans describe it.
2
Australia, Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy,
Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland, United
Kingdom and the United States. The examination of the law in these 20 countries has to take into
account that two of them are federal systems, the United States and Australia, in which the states and
not the federal government have the jurisdiction to pass laws relating to blood alcohol concentration
for drivers. [In Canada the provinces do not have independent jurisdiction of the kind possessed by
American and Australian states, although, as will be discussed in more detail below, Canadian
provinces do have a degree of concurrent jurisdiction that cannot be overlooked. They can legislate
permissible levels of BAC for the purpose of imposing administrative licencing suspensions, but not
for the purpose of creating offences.] This means that while Canada is being compared with 20 other
countries, there are actually 77 independent jurisdictions being compared with Canada, comprising
18 unitary states, the 51 American jurisdictions (including the District of Columbia), and the 8
Australian jurisdictions (Australian Capital Territory, New South Wales, Northern Territory,
Queensland, South Australia, Tasmania, Victoria, and Western Australia).
3
Alcoweb 1996, www.alchoweb.com, “Legislation on blood alcohol levels.” Interestingly, among the
United States, Massachusetts does not have a BAC law.
1
Canada’s Blood Alcohol Laws — an International Perspective
C
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Canada Safety Council
internationally, “the trend [in defining permissible BACs] has been downward in
recent years;”4 and,
dealing specifically with the comparison countries examined in this study, most of
the 20 comparison countries begin to impose legal consequences on ordinary
drivers5 at .05.6
Before these conclusions are relied on to support any initiative to move to a .05 limit in the Criminal
Code of Canada, however, a number of points need to be made.
First, statistics can be organized to create different impressions. Take the last conclusion,
for example. While it is true that most of the comparison countries have legislation that begins to
impose legal consequences on ordinary drivers at .05, if one examines the independent legal jurisdictions
operating within those 20 countries (including the states in Australia and in the United States, which
have independent jurisdiction to legislate respecting BACs) the conclusion that emerges is that most
of the independent legal jurisdictions in comparison countries do not use a .05 level. Rather, they
begin to impose legal consequences on ordinary drivers at BACs of .08 or higher. Indeed only 20 of
77 independent legal jurisdictions operating in the 20 comparison countries use .05 BAC limits, with
the other 57 using BACs of .08 or higher. By looking at countries rather than jurisdictions, it is
possible to present a more prevalent trend than it is if the focus is placed on independent legislative
jurisdictions. As is always true, therefore, care should be taken in relying on statistics, for their mere
presentation can create dramatically different pictures.
Even leaving aside issues relating to the proper organization of data, little can be learned
from international legislation about whether blood alcohol levels provided for in the Criminal Code of
Canada should be lowered. This, I would suggest, is the most important conclusion to emerge from
4
NHTSA, “On DWI Laws in Other Countries,” March 2000 at 7. This detailed comparative study
involved countries from the European Union, (Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Ireland, Italy, Luxembourg, The Netherlands, Portugal, Spain, Sweden, and the
United Kingdom), other western European Countries including Norway and Switzerland, North
America (including the United States, Canada and Mexico) and Australia, New Zealand and Japan.
Information was gathered by surveying contacts in the various Highway Traffic Administrations.
5
The reference to “ordinary drivers” is included because a number of jurisdictions use lower
permissible BACs for drivers in particular classes, such as novice drivers or commercial vehicle
operators, or in one jurisdiction, Wisconsin, for repeat offenders.
6
It should be noted that in some jurisdictions the BAC designated in the legislation, whether it be .05
(ie., Greece ) or .08 (ie., Canada), describes the highest permissible level of alcohol that a driver can
have in his or her system. In other jurisdictions, such as New South Wales (.05), District of
Columbia (.08) or Connecticut (.10), the designated BAC describes the lowest impermissible level of
alcohol in a driver’s system. The distinction between those jurisdictions that use a particular BAC as
the highest permissible level, and those that use the same BAC as the lowest impermissible level is so
insignificant that no note of it will be made in this study. For convenience those jurisdictions having
resort to .05 (whether as the highest permissible or lowest impermissible BAC) will be equated with
each other, as will jurisdictions using .08 or .10.
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the following study. International legislation is simply too varied to yield informative generalizations.
Legislation varies not only in terms of what the permissible BAC is from country to country, or
jurisdiction to jurisdiction, but it also varies in terms of who the legislation applies to. To take but
one example, the Criminal Code of Canada applies to anyone who is in care or control of a motor
vehicle,7 even if not intending to drive the motor vehicle, whereas in New Zealand the BAC
legislation applies solely to those who drive or attempt to drive a motor vehicle.8 The same is true
in the United States where legislation tends to focus on driving, and not care and control, but not
Australia, where control tends to be sufficient for conviction. In a number of jurisdictions, different
BACs are permissible for different kinds of drivers; several jurisdictions permit little or no alcohol
blood concentration for new or young drivers,9 while some impose lower levels on persons
operating heavy or commercial vehicles,10 while still other jurisdictions draw no distinction.
In addition, BACs are used differently between jurisdictions. In Canada it is an offence to
drive with more than the legal limit of alcohol, even if the driver cannot be shown to be impaired
by alcohol. In three American states having BAC legislation, it is not per se illegal to drive with a
BAC above the designated level. Instead, the BAC simply furnishes some evidence of impairment.
Thus, the way in which BACs are used differs. These differences diminish the value of making
simple comparisons of BAC levels.
More important than any of this, however, is that the penalties, indeed the entire approach
to dealing with illegal BACs, varies from country to country. Of those jurisdictions that do use
BACs of .05, only four of 20 treat persons having BACs of under .08 as having committed offences
liable to imprisonment. As will be demonstrated below, if Canada were to simply lower the
permissible BAC in section 253 (b) of the Criminal Code of Canada to .05, while it would be possible
7
“Care or control” of a motor vehicle involves the use of the motor vehicle or its fitting or
equipment. A non-controversial example would be a person who goes into the car to “sleep it off”
and who then leaves the motor running in order to heat the vehicle. Persons who are in care or
control of a motor vehicle and who are impaired by alcohol might accidentally set the vehicle in
motion, thereby posing a danger to persons and property.
8
Land Transport Act 1998, No. 110, New Zealand, s.56(2).
9
In Australia for example, where legislation varies between Australian states, limits of .02 are imposed
on new drivers (Australian Capital Territory, New South Wales, Northern Territory, Tasmania) or
youthful drivers (Queensland, South Australia), whereas higher limits are imposed on ordinary
drivers. In Canada, most provinces have graduated licencing programs with lower BACs for new
drivers.
10
In Spain there is a lower BAC level for heavy vehicles and commercial passenger vehicles, and in
some of the states of the United States there are lower levels for commercial vehicles. NHTSA, “On
DWI Laws in Other Countries,” March 2000 at 11 and 12.
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Canada Safety Council
to suggest that Canada would be following an international trend in doing so, it would be equally
possible and arguably more accurate to suggest that Canada would be bucking the international
trend by using a criminal response for low level blood alcohol counts.
My point is not to advocate for any particular generalization. It is simply to demonstrate
that as with all statistical or comparative work, information can be recast to support both those
who wish to see lower BACs and those who do not. More importantly, it can be simplified to the
point where it generates misunderstanding. To get an accurate picture of things, a contextual and
complete examination is required. As indicated, when a contextual and complete examination is
done, the picture that emerges is simply too complex to produce trends that can give real guidance
for Canada.
II.
Permissible BACs in Canada
In order to begin comparing Canadian legislation to that found in other jurisdictions, the law
relating to BACs in Canada has to be set out.
A.
The Criminal Code Provisions
The BAC provision of the Criminal Code is section 253(b). It provides in relevant part:
253.
Every one commits an offence who operates a motor vehicle ... or has the care or
control of a motor vehicle...whether it is in motion or not,
(b)
having consumed alcohol in such quantity that the concentration in the
person’s blood exceeds eighty milligrams of alcohol in one hundred
millilitres of blood.
Thus both operation and “care or control” of a motor vehicle are prohibited at BACs of greater
than .08.
Looking only at the Criminal Code, it is therefore possible to say that Canada has a BAC limit
of .08. This, however, is too simplistic. An accurate description of the law in Canada has to
reflect the fact that both the Federal and many provincial governments have enacted legislation
relating to BACs.11
11
Canada has a federal system. To prevent inconsistent legislation, the Constitution of Canada defines
the jurisdiction or power of the federal and provincial levels of government within that system. In
some areas, including alcohol driving, there is concurrent jurisdiction, provided legislation does not
conflict, and provided each level of government enacts its laws for an appropriate purpose. Where
there is concurrent jurisdiction and the Government of Canada has entered the field by passing
legislation, any provincial legislation is rendered inoperative.
The Government of Canada (herein the Federal government) is empowered by section
4
Canada’s Blood Alcohol Laws — an International Perspective
B.
Canada Safety Council
Provincial Legislation
For ordinary drivers,12 most provinces in Canada make it impermissible to operate or have care or
control of a motor vehicle at levels approximating .05. Although the provinces and territories do
not create offences relating to BAC levels because of constitutional limits on their power to do so,13
drivers are issued temporary suspensions if they drive with provincially impermissible BACs. Should
those drivers operate a motor vehicle while suspended, they will then be committing an offence for
which they can be punished. As the following chart shows, among the 13 provinces or territories of
Canada, 10 have adopted BAC license suspension legislation at levels below .08. Only Alberta,
Quebec and the Yukon have not passed legislation prohibiting driving with BACs lower than .08.
91(27) of the Constitution Act,1867, the “criminal law power,” to enact legislation that prohibits
conduct and imposes penalties for a “criminal public purpose.” What constitutes a criminal public
purpose cannot be defined with precision, but includes laws created to secure public peace, order,
security, health and morality. The alcohol driving offences found in the Criminal Code of Canada
pursue the public purpose of securing health because of the risks posed by alcohol consumption by
persons who are in care or control of a motor vehicle.
The power of provinces to enact legislation relating to alcohol driving comes from the
authority conferred on provinces by section 92(13) of the Constitution Act, 1867 to enact laws relating
to property and civil rights. The property and civil rights power includes the right to regulate driving
on provincial roads, in the interests of public safety.
By criminalizing driving or care and control with BACs exceeding .08, the federal
government has entered the field. As a matter of constitutional law, this prevents provinces in
Canada from creating offences relating directly to BAC levels, even though they, too, have
concurrent jurisdiction to legislate in the area. The provinces cannot therefore establish permissible
blood alcohol levels and fine or jail drivers who exceed those limits. The only thing provinces can do
is to use their licencing authority to suspend drivers who exceed provincially or federally established
limits. Every province in Canada has used this opportunity to enact legislation relevant to alcohol
driving, short of creating offences. Provinces impose licence suspensions for drivers convicted of
criminal blood alcohol offences, and many impose tempora-ry suspensions at BACs below .08. Many
provinces also have graduated licensing programs and make it impermissible for inexperienced or
novice drivers to drive with any blood alcohol.
12
Most provinces prohibit new or novice drivers from driving with any blood alcohol level. See the
chart below.
13
Exceptionally, in s.224 of the Motor Vehicle Act 1996 RSBC, c-318, British Columbia has attempted
to create an offence of driving with more than 80 milligrams of alcohol in 100 millilitres of blood.
Because the Federal Government has invaded the field by passing a similar offence in section 234(b)
of the Criminal Code, the BC provision is likely unconstitutional.
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TABLE 1 - PROVINCIAL BAC LEVELS AND SANCTIONS
Province
Provincial BAC Level
for Ordinary Drivers
Sanction
Special BACs
Alberta
no BAC limit but if
police have reasonable
grounds to believe that,
at any level of alcohol
consumption, ability to
drive is affected, licence
can be suspended14
24 hour suspension
“novice drivers”
cannot have any
BAC15
British Columbia
.05 BAC limit, with
reverse onus. Peace
officer can suspend
licence if having
reasonable grounds to
believe that at any level
of alcohol, ability to
drive is affected, but
suspension ends if
driver demonstrates
BAC is less than .0516
24 hour suspension
for drivers with
conditional licences
Peace Officer can
issue 12 hour
suspension for any
level of BAC, which
suspension terminates
if driver can prove
that BAC was less
than .0317
Manitoba
.05 BAC limit18
24 hour suspension
N/A
New Brunswick
.05 BAC or more19
24 hour suspension
for “novice drivers,”
if any BAC present,
24 hour suspension20
14
Traffic Safety Act, R.S.A., 2001, c. T-6, s.89.
15
Traffic Safety Act, R.S.A., 2001, c. T-6, s.90.
16
Motor Vehicle Act, RSBC 1996, c.318, s.215(2),(6).
17
Motor Vehicle Act, RSBC 1996, c.318, s.90.3.
18
Highway Traffic Act, SM., c.H-60, s.265(1).
19
Motor Vehicle Act, RSNB, c. M-17, s.310.01
20
Motor Vehicle Act, RSNB, c. M-17, s.310.02(5).
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Newfoundland
.05 BAC or more21
24 hours on first
suspension
progressing to 6
months for repeat
offences22
if “novice drivers”
have any BAC, licence
is suspended for 2
months, progressing
for repeat offences to
up to 6 months23
Northwest
Territories
.06 BAC limit, with
reverse onus. Peace
officer can suspend
licence if having
reasonable grounds to
believe that at any level
of alcohol, ability to
drive is affected, but
suspension ends if
driver demonstrates
BAC of less than .0624
4 - 24 hours
N/A
Nova Scotia
.05 BAC or more25
24 hour suspension
learners and newly
licensed drivers (24
months) cannot have
any BAC
Ontario
.05 BAC or more26
12 hour suspension
new drivers cannot
have any BAC,
enforced by 30 day
suspension and fine
Prince Edward
Island
.05 BAC or more27
24 hour suspension.
young drivers, under
19, BAC of .01; new
drivers, no BAC
permissible, enforced
by 3 month
suspension and fine28
21
Highway Traffic Act, RSN 1990, c.H-3, s.60.1.
22
Highway Traffic Act, RSN 1990, c.H-3, s.60.2.
23
Highway Traffic Act, RSN 1990, c.H-3, s.60.4.
24
Motor Vehicles Act, SNWT, c. M-16, s.116.
25
Motor Vehicle Act, RSNS, 1989, c.293, s.279C.
26
Highway Traffic Act, R.S.O., 1990, c. H-8, s.48.
27
Highway Traffic Act, RSPEI, c.H-5, s.277.1
28
Highway Traffic Act, RSPEI, c.H-5, s.277.1(13).
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Canada Safety Council
Quebec
no special legislation
N/A
new drivers, BAC of
0.0, enforced by
immediate 15 day
suspension, and 3
months suspension if
convicted29
Saskatchewan
.04 BAC or more30
24 hour suspension
BAC of .04 for
younger drivers
Yukon
no special legislation
N/A
no special legislation
Nunavut
.06 BAC limit, with
reverse onus. Peace
officer can suspend
licence if having
reasonable grounds to
believe that at any level
of alcohol, ability to
drive is affected, but
suspension ends if
driver demonstrates
BAC of less than .0631
4-24 hour suspension
no special legislation
In light of this, it would be misleading to focus solely on the Criminal Code of Canada to claim
that it is permissible in Canada to drive at alcohol limits of up to .08. A more accurate statement of
the law in this country would be that in most provinces and territories in Canada it is impermissible
to operate a motor vehicle at BACs of more than .05, but that the operation of motor vehicle only
becomes a criminal matter where levels exceed .08.
How, then, does this BAC regime, in place in Canada, compare with relevant jurisdictions?
III.
Permissible Blood Alcohol Levels Vary
It is standard practice internationally among relevant comparison countries, to use established BAC
levels as either being per se illegal, or as presumptive evidence of impairment.32 What is not standard
29
Highway Safety Code, S.Q., c.24.2_A, s.202.
30
Highway Traffic Act, S.S., c.H-3.1, s.91.
31
Nunavut incorporates the law from the Northwest Territories, pursuant to the Nunavut Act, S.C.,
1993, c.28, s.29. It has yet to pass a special Motor Vehicle Act.
32
NHTSA, “On DWI Laws in Other Countries,” March 2000 at 7.
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is the permissible BAC that is used among relevant comparison countries. In 1998 a general study
that included reference to permissible BACs in other countries was conducted by the Addiction
Research Foundation on behalf of the Canadian Transport Department. It was noted in that study
that “there are substantial variations between countries in BAC limits, although most nations appear
to have a limit of 50 (.05) or 80 (.08) mg%.”33 The same holds true today. There continues to be
substantial variation in permissible blood alcohol levels. Permissible alcohol levels vary
internationally, apparently from no allowable limit in the Czech Republic,34 for example, to .10 in
almost half of the American States.35
Variations exist not only in countries having divergent political traditions like the Czech
Republic and the United States, but also among countries having broadly similar political traditions.
In the 20 countries, or 77 jurisdictions, being compared with Canada in this study, permissible
BACs vary from .02 to .10.
The following table shows the permissible BAC utilized in legislation in each of the
comparison countries for ordinary drivers, and notes, where applicable, the existence of contextual
variations in permissible BACs within those countries.
TABLE 2 -LOWEST PERMISSIBLE BAC LEVELS BY COUNTRY
Country
Lowest BAC Limit
Contextual Limits
Canada
.08 - Federal Limit
.05 range - most provinces
Some provinces use .00 for inexperienced
drivers
Australia
.05
Some states use .02 for new drivers, or
designated commercial vehicles
Austria
.05
.01 for heavy vehicles
Belgium
.05
Denmark
.05
Finland
.05
France
.05
Germany
.05
Greece
.05
33
Addiction Research Foundation, “Assessing the Potential Impact of Lowering the Legal Blood
Alcohol Limit to 50 MG% in Canada”, a study commissioned by Transport Canada at 2.
34
NHTSA, “On DWI Laws in Other Countries,” March 2000 at 10.
35
See the discussion below relating to the United States.
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Canada’s Blood Alcohol Laws — an International Perspective
Netherlands
.05
Norway
.0536
Portugal
.05
Spain
.05
Sweden
.02
Italy
.08
Ireland
.08
Luxembourg
.08
New Zealand
.08
Switzerland
.08
United Kingdom
.08
United States
.08 in 26 States
.10 in 21 States37
Canada Safety Council
.03 for younger drivers
some states have BAC levels of .04 for
commercial drivers or .02 or .00 for new
drivers.
In simple terms, leaving Canada aside, the following results can be generated and placed in
table form:
TABLE 3 - LOWEST PERMISSIBLE BAC BREAKDOWN
ORGANIZED BY COUNTRY (Canada Excluded)
Blood Alcohol Concentration of .05 or lower
THIRTEEN COUNTRIES
Australia, Austria, Belgium, Denmark, Finland,
France, Germany, Greece, Netherlands,
Norway, Portugal Spain, Sweden (.02).
Blood Alcohol Concentration of .08 or higher
SEVEN COUNTRIES
Ireland, Italy, Luxembourg, New Zealand,
Switzerland, United Kingdom, United States
36
The March 2000 NHTSA study, “On DWI Laws in Other Countries” records that “The Norwegian
government plans to propose an amendment to the Road Traffic Act to lower the BAC limit to .02.”
Norwegian statutes do not appear to be available on the Internet, and efforts to confirm through the
Norwegian Embassy whether this change has occurred were unsuccessful.
37
Including the District of Columbia. The remaining four states do not have per se BAC offences.
Three (Alabama, Colorado and Montana) use BAC levels to ground rebuttable presumptions of
driving under the influence while the fourth, Massachusetts, has no BAC legislation.
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It is therefore possible to conclude that, among comparison countries, .05 BACs are almost
twice as common as BACs of .08 or higher. As indicated, however, the picture changes dramatically
when independent law making jurisdictions within those same 20 countries are used, rather than the
countries themselves. Jurisdictions within the comparison countries are close to three times as
likely to use BACs of .08 or greater than they are to use BACs of .05 or less.38
TABLE 4 - ORDINARY DRIVER PERMISSIBLE BAC BREAKDOWN
ORGANIZED BY JURISDICTION WITHIN COMPARISON COUNTRIES
(Canada Excluded)
Blood Alcohol Concentration of .05 or lower
TWENTY JURISDICTIONS
Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Netherlands, Norway,
Portugal Spain, Sweden (.02), and the eight
Australian states.
Blood Alcohol Concentration of .08 or higher
FIFTY-SEVEN JURISDICTIONS
Ireland, Italy, Luxembourg, New Zealand,
Switzerland, United Kingdom, and the fifty
United States, and the District of Columbia
IV.
The Trend
As described above, there is a trend to lowering BACs. This fact, too, must be understood in
context. Leaving the rather unique case of the United States aside for the moment, this trend has
been a gradual one, rather than the product of a decisive, recent flurry of legislative activity.
Jurisdictions having BACs of .05 adopted them over the course of the last 25 years. Only between
38
It is possible to debate the merits of whether countries or jurisdictions should be used in making the
comparison. On the one hand, the use of jurisdictions arguably skews the result because 51 of those
jurisdictions are in the United States, and 8 are in Austalia. States within those countries broadly
share a common culture and legal tradition, and to count them in multiples according to state overrepresents international perspective. On the other hand, jurisdictions arguably provide a more
accurate representation as each of the jurisdictions have legal and constitutional power to make
independent choices. To amalgamate all of Australia into one statistic, for example, would be
misleading in suggesting that only one entity made the choice to go to .05, whereas eight entities
made that discrete choice. Similarly, in the United States, 50 independent legal entities made the
decision to adopt BACs at .08 or .10. This reality becomes lost when the United States is presented
as one entity.
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five and seven39 of the 20 jurisdictions adopted BACs of .05 in the past five years. This diminishes
the strength of any argument that the trend to lowering BACs should sweep Canada along.
TABLE 5 - POINT AT WHICH JURISDICTIONS
ADOPTED BACs OF .05 OR LOWER
JURISDICTION
WHEN ADOPTED .05 OR LOWER
Victoria, Australia
1976, June (no date available)
New South Wales, Australia
1982, 17 December
Queensland, Australia
1982, 20 December
Tasmania, Australia
1983, 6 January
Western Australia, Australia
1988, September (no date available)
Sweden
1990, 1 July
Australian Capital Territory
1991, 1 January
Northern Territory, Australia
1992 (no month or date available)
South Australia
1992, 1 July
Finland
1994 (no month or date available)
Belgium
1994, 1 December
Netherlands
1994 (no month or date available)
France
1995, September (no date available)
Austria
1998, 1 January
Portugal
1998, 3 January
Denmark
1998, 1 March
Spain
1999, 6 May
Germany
post March 200040
39
Austria, Portugal, Denmark, Spain, Germany. Since no dates of adoption are known for Greece and
Norway, it is possible that these jurisdictions adopted their lower limits during this period.
40
Documentation received from the German Embassy in Ottawa summarizing the law in Germany
discloses a .05 BAC, but no date of adoption. In March 2000, NHTSA “On DWI Laws in Other
Countries” reported a BAC of .08 for Germany. Interestingly, with the reunification of Germany the
former GDR raised the legal BAC from 0.0% to .08, a change that took effect on 1 January 1993.
See Hans-Peter Kruger, “Differential Effects of Deterrence - What Can be Learned from Raising a
BAC Limit” www.druglibrary.org/Schaffer.
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Greece
not available
Norway
not available
In the United States, there has been a clear, recent trend to lower permissible BACs. On
October 23, 2000, President Clinton signed federal legislation requiring each state to pass .08% BAC
legislation, or lose a portion of their federal highway funding. Gradual reductions in highway
funding were set to begin to occur on 1 October 2003 of 2% a year, culminating in a reduction of
8% by 1 October 2006. After the Clinton legislation was adopted, a number of states complied.
The following table shows permissible BACs.
TABLE 6 - PERMISSIBLE BAC LEVELS IN THE UNITED STATES
STATE
ORDINARY BAC LIMIT
Alabama41
.08 - rebuttable presumption of DUI42
Alaska43
.10 - per se offence
Arkansas44
.08 - per se offence
Arizona45
.08 - per se offence
California46
.08 - per se offence
Colorado47
.10 - rebuttable presumption of DUI
Connecticut48
.1049 - per se offence
Delaware50
.10 - per se offence
41
Code of Alabama, 32-5A-191,194 (2001).
42
“DUI” refers to “driving under the influence.”
43
Alaska Statute, 28.35.030 (2001).
44
Arkansas Code, 5-65-10 (2001)
45
Arizona Revised Statutes, 29-1381 (2001).
46
California Vehicle Code, 23152 (2001).
47
Colorado Revised Statutes, 18-3-106 (2001).
48
Conn. Gen. Stat, Title 14 - 227a.
49
For first offence. The BAC falls to .07 for a subsequent offence.
50
21 Del.C., 4177 (2001).
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District of Columbia51
.08 - per se offence
Florida52
.08 - per se offence
Georgia53
.08 - per se offence
Idaho54
.08 - per se offence
Illinois55
.08 - per se offence
Indiana56
.08 - per se offence
Iowa57
.10 - per se offence
Kansas58
.08 - per se offence
Louisiana59
.10 - per se offence
Kentucky60
.08 - per se offence
Maine61
.08 - per se offence
Maryland62
.08 - per se offence
Massachusetts63
no per se offence and no BAC presumption of DUI
Michigan64
.10 - per se offence
51
D.C. Code, 50- 2201.05 (2001).
52
Fla. Stat. 316.193 (2001).
53
Official Code of Georgia 40-6-391 (2001).
54
Idaho Code, 18 - 8004 (2000).
55
Illinois Vehicle Code, 625 ILCS 5/11-501 (2001).
56
Indiana Code 9-30-5-1 (2001).
57
Iowa Code 321J.2 (2002).
58
Kansas Statutes Annotated 8-1567 (2000).
59
La. R.S. 14:98 (2001).
60
KRS 189A.010 (2001).
61
29-A M.R.S. 2411 (2001).
62
Md. Transportation Code Ann 11-127-1 (2001).
63
Mass. Ann. Laws ch. 90 - 24 (2002).
64
MCLS 257.625 (2001).
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Minnesota65
.10 - per se offence
Mississippi66
.10 - per se offence
Missouri67
.08 - per se offence
Montana68
.10 - rebuttable presumption of DUI
Nebraska69
.08 - per se offence
Nevada70
.10 - per se offence
New Hampshire71
.08 - per se offence
New Jersey72
.10 - per se offence
New Mexico73
.08 - per se offence
New York74
.10 - per se offence
North Carolina75
.08 - per se offence
North Dakota76
.10 - per se offence
Ohio77
.10 - per se offence
Oklahoma78
.10 - per se offence
65
Minn. Stat. 169A.20 (2000).
66
Miss. Code. Ann. 63-11-30 (2001).
67
R.S. Mo. 577.012 (2001).
68
Mont. Code Anno. 61-5-401 (2001).
69
R.R.S. Neb. 60-6-196 (2001)
70
Nev. Rev. Stat. Ann 484.379 (2001).
71
RSA 265:82 (2000).
72
N.J. Stat. 39:4-50 (2001).
73
N.M. Stat. Ann. 66-8-102 (2001).
74
NY CLS Veh & Tr. 1192 (2001).
75
N.C. Gen Stat. 20-138.1 (2000).
76
N.D. Cent. Code 39-08-01 (2001).
77
ORC. Ann. 4511.19 (Anderson 2001).
78
47 Okl.St. 11-902 (2000)
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Oregon79
.08 - per se offence
Pennsylvania80
.10 - per se offence
Rhode Island81
.08 - per se offence
South Carolina82
.10 - per se offence
South Dakota83
.10 - per se offence
Tennessee84
.10 - per se offence
Texas85
.08 - per se offence
Utah86
.08 - per se offence
Vermont87
.08 - per se offence
Virginia88
.08 - per se offence
Washington89
.08 - per se offence
West Virginia90
.10 - per se offence
Wisconsin91
.1092 - per se offence
79
ORS & 813.010 (1999).
80
75 Pa.C.S. 3731 (2001).
81
R.I. Gen. Laws 31-27-2 (2001).
82
S.C. Code Ann. 56-5-2933 (2000).
83
S.D. Codified Laws 32-23-1 (2001).
84
Tenn. Code Ann. 55-10-401 (2001).
85
Tex. Penal Code 49.04 (2002).
86
Utah Code Ann 41-6-44 (2001).
87
23 V.S.A. 1201 (2001).
88
Va. Code Ann 18.2-266 (2001).
89
Rev. Code. Wash (ARCW) 46.61.502 (2001).
90
W.Va.Code 17C-5-2 (2001).
91
Wis. Stat. 346.63 (2000).
92
If the person has two convictions, the BAC drops to .08; with three or more convictions to .02.
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Wyoming93
.10 - per se offence
Hawaii
.08 - per se offence
Currently, then, there are 26 American jurisdictions where it is a per se offence to drive with
a BAC of .08 or more. There are 21 states that create per se offences for driving with BACs of .10 or
more. In four states there is no per se offence for driving with any BAC., although in three of them,
drivers having either .08 or more (Alabama), or a BAC of .10 or more (Colorado and Montana) are
presumed to be driving under the influence of alcohol. That presumption can be rebutted by
evidence that the ability of the driver to drive was not in fact affected by his or her BAC level. In
Massachusetts there is no per se offence, and no presumption of driving under the influence related
to designated BACs.
What conclusions can be drawn for Canada, then, from the trend to lowering BACs in the
United States? The Clinton initiative that inspired reduction of BACs in the United States does not
provide any support for the initiative to lower BACs in the Criminal Code of Canada to .05. First,
insofar as the flurry of legislation signals a trend to lowering BACs, it is difficult to cite it as the
collected wisdom of numerous jurisdictions that BACs should be lowered. The existence of
highway funding penalties for states not legislating demonstrates only the commitment the Clinton
government had, and undermines the confidence that can be placed in any claim that states prefer
lower BACs. The second reason the Clinton initiative does not support the move to BACs of .05 in
spite of the fact it signals a trend to lower BAC rates is the obvious one - the initiative rejects .05
BACs in favour of .08 BACs.
V.
Divergent Responses to BACs - Comparing Apples and Oranges
As can be seen, the international response to permissible BAC levels is tremendously varied, and
trends to reducing BAC levels are long term and gradual. The thing that most diminishes the ability
to use international trends to support an initiative to reduce BACs in the Criminal Code of Canada to
.05, however, is the divergent way in which different jurisdictions use BACs.
93
Wyo. Stat. 31-5-233 (2001).
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In general, although it is impossible always to develop a clean or precise categorization,
there are two responses that jurisdictions can have after they have decided to adopt permissible
BAC legislation. They can use a criminal law approach, or a regulatory or administrative approach.
Even within those jurisdictions taking a criminal approach, some treat BAC offences more severely
than others. This makes it perilous to attempt to point simplistically to jurisdictions that have
reduced BACs to .05 and to suggest that Canada should follow suit. To make this point more
explicitly and comprehensibly, an examination of criminal and administrative responses is required.
A.
Criminal and Administrative Responses
Making conduct criminal is society’s ultimate expression of disapprobation. Justice Cory of the
Supreme Court of Canada put it this way: “Acts or actions are criminal when they constitute
conduct that is, in itself, so abhorrent to basic values of human society that it ought to be
prohibited completely.”94 He used the examples of murder, sexual assault, fraud, robbery and theft
as conduct so repugnant to society that they are universally recognized as crimes.
Not all offences are criminal. Some offences, generally known as “regulatory” or “public
welfare offences” are enacted for non-criminal or administrative purposes. Again, Justice Cory has
explained that “some conduct is prohibited not because it is inherently wrong, but because
unregulated activity would result in dangerous conditions being imposed upon members of
society.”95 An example of a regulatory offence designed to protect members of society from
dangerous activity would be speeding. Governments can regulate both by creating non-criminal,
“regulatory” or “public welfare” or “administrative” offences, or by imposing licensing
requirements on various forms of activity.
Like all legal distinctions, the distinction between crimes and regulatory offences is
imperfect, but a number of generalizations can be made.
1.
Stigma
The first generalization has to do with the stigma associated with conviction. Persons
charged with criminal offences have to bear the infamy of appearing in a criminal court.
Conviction carries a criminal record, certifying that the convict has violated one of society’s
94
R. v. Wholesale Travel Group Inc. [1991] 3 S.C.R. 154 at 218.
95
R. v. Wholesale Travel Group Inc. [1991] 3 S.C.R. 154 at 218.
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most sacred values. Possession of a criminal record can have significant implications for
membership in professions, for international mobility, for immigration, for the ability to get
“bonded,” for the ability to hold even private offices like trusteeships, and for employment
in both the public and private sectors. By contrast, individuals convicted of regulatory
offences do not have a criminal record, the conviction tends to carry a lesser stigma, and
entails fewer collateral consequences.
2.
Police and Pre-Conviction Powers
Even before conviction, the police possess greater powers of arrest and detention when
dealing with criminal offences. Prosecutors are empowered for criminal cases to seek the
imposition of bail conditions or even pretrial incarceration. These powers do not exist with
respect to regulatory or administrative offences.
3.
Penalties
Although individuals convicted of regulatory offences can, in some cases, receive jail terms
or significant fines, speaking generally those convicted of crimes face more serious penalties,
with a greater risk of loss of liberty.
In light of these differences, it is important in comparing international BAC
legislation to gain some measure of whether the legislation being compared is criminal, or
administrative or regulatory.
B.
The Canadian Approach
Canada takes both a criminal and an administrative approach to driving in excess of permissible
BACs.
The criminal approach is reflected by section 253(b) of the Criminal Code of Canada. It is
significant that the offence of driving with more than the legal limit of alcohol is found in the
Criminal Code of Canada, the statute that makes illegal most of those transgressions that violate basic
societal norms. By contrast, in Australia and New Zealand, for example, BAC provisions are found
in specialized Motor Vehicle Acts along with clear regulatory offences such as speeding, or
improper lane changes.
In Canada, conviction contrary to section 253(b) gives rise to a criminal record, coupled
with all of the attendant residual problems that having a criminal record can entail. Moreover, the
offence contemplates the use of the penal process that is reserved for serious offences. In Canada
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criminal offences are categorized according to whether they can be prosecuted “summarily” or
“indictably.” Indictable offences are generally considered among the more serious offences, and
therefore involve more complex procedures. Summary offences are generally considered to be less
serious. Although it is rare to do so for first offenders, section 253(b) permits prosecutors to elect
to treat any over .08 prosecution indictably. In short, section 253(b) is intended to, and does, stamp
BAC offences with criminal stigma.
Regardless of how the prosecutor elects, those arrested for section 253(b) offences can be
detained pending bail hearings, held in custody pending trial, and released on conditions.
Finally, there is the potential penalty associated with conviction. The punishment for
persons convicted of offending section 253(b) is set out in sections 255(1) and 259(1) of the
Criminal Code:
255(1) Every one who commits an offence under section 253 ... is guilty of an indictable
offence or an offence punishable on summary conviction and is liable,
(a)
whether the offence is prosecuted by indictment or punishable on summary
conviction, to the following minimum punishment, namely,
(i)
(ii)
for the first offence, to a fine of not less than six hundred dollars,
for a second offence to imprisonment of not less than fourteen days,
and
(iii)
for each subsequent offence, to imprisonment of not less than
ninety days;
(b)
where the offence is prosecuted by indictment, to imprisonment for a term
not exceeding five years, and
(c)
where the offence is punishable on summary conviction, to imprisonment
for a term not exceeding six months.
Section 259(1) states in relevant part:
259(1) When an offender is convicted of an offence under section 253 ... the court that
sentences the offender shall, in addition to any other punishment that may be imposed for
that offence, make an order prohibiting the offender from operating a motor vehicle on any
street, road, highway or other public place ...
(a)
for the first offence, during a period of not more than three years plus any
period to which the offender is sentenced to imprisonment, and not less
than one year;
(b)
for a second offence, during a period of not more than five years plus any
period to which the offender is sentenced to imprisonment, and not less
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than two years; and
(c)
for each subsequent offence, during a period of not less than three years
plus any period to which the offender is sentenced to imprisonment.
Thus, in Canada we have chosen to treat driving with greater than .08 as a crime, and we
have erected a decidedly strict regime by criminal law standards. Anyone convicted of a first offence
under section 253(b) of driving or being in care or control of a motor vehicle with a BAC of more
than .08, will receive a minimum fine of $600, and a minimum driving prohibition of between one
and three years,96 and is in jeopardy of receiving a term of incarceration.97 For subsequent offences,
incarceration is required, and minimum driving prohibitions increase to two years and three years
respectively, with the possibility for third offences of a lifetime prohibition. It is noteworthy that
mandatory sentencing provisions are the exception in Canada, even for subsequent offences. The
Criminal Code of Canada treats BAC offences as serious crimes.
By contrast, the provincial legislation described above is decidedly administrative in nature.
It does not even use offences but rather entails only licence suspensions. As explained, this is
because of constitutional limits on the power of provinces to create offences.
In sum, in Canada there is both a criminal law and an administrative response to driving
with impermissible BACs. The Canadian criminal response kicks in when BACs exceed .08. The
administrative response varies from province to province, but using the most common approach, it
kicks in at BACs exceeding .05. How does this compare internationally?
96
In Canada we distinguish between licence suspensions and driving prohibitions. A licence suspension
is imposed by the provinces, who grant the licence. Variable lengths of suspension are imposed from
province to province where a driver is convicted of a section 253(b) offence. A driving prohibition is
a criminal sanction imposed at the time of sentencing, pursuant to the Criminal Code, and prohibits
driving anywhere in Canada.
97
In practice it is so rare for first offence drivers to be incarcerated for low level readings in the .08 .12 range, that it is almost safe to say that it never happens. First, because of the inaccuracy in
calibrating approved breath test machines, most police forces do not lay charges unless the sample
exceeds the permissible BAC by at least .01. Even if charges are laid, for a first offence the typical
response is a fine, absent aggravating circumstances. Although there is no set grid beyond the
minimum fine of $600, the practice is to increase the fine, and the length of the prohibition, as the
BAC rises.
The reluctance to use jail as an option for lower BACs is an international trend. It has been
observed in an Addiction Research Foundation study commissioned for Transport Canada in 1998
noted, even in those countries that permit incarceration at lower levels, “the use of incarceration as a
penalty at low BACs ... appears to be rare in practice.” Addiction Research Foundation, “Assessing
the Potential Impact of Lowering the Legal Blood Alcohol Limit to 50 MG% in Canada”, a study
commissioned by Transport Canada., at 27. Exceptionally, in a number of American jurisdictions,
mandatory jail sentences, usually of 48 hours, are used for first offenders with low BACs. In Canada,
jail is not exceptional for repeat offenders - it is required.
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Criminal and Administrative Responses Internationally
The following Table addresses whether, on a first conviction, the approach taken for ordinary
drivers is administrative or criminal in those jurisdictions using a BAC below .08.98 Since the
characterization of whether a particular approach is criminal or administrative can be controversial
and difficult, for the sake of simplicity in illustrating the different approaches taken in this Table, a
regime is identified as criminal if it involves the possibility of jail, and administrative if it does not.99
To assist in comparisons, potential fines and licence suspensions or prohibitions are
included in the Table. For the purposes of the table, no distinction is drawn between suspensions
and prohibitions.
TABLE 7 - FIRST OFFENCES IN .05 JURISDICTIONS
COUNTRY
BAC
JAIL100./FINE
SUSPENSION/
PROHIBITION
Canada
.05 administrative
.08 criminal
- jail possible at .08
- mandatory
minimum fine
- minimum
prohibition of one
year
Austria101
.05 administrative
- jail possible only
with accident
- fines increase with
BAC
- suspension at .08
98
It is common for jurisdictions to legislate increased penalties for subsequent convictions under BAC
legislation. Whether particular regimes take a criminal or administrative approach can best be
demonstrated, however, by examining the response to first offenders.
99
This approach is taken because jail is a necessary component of a criminal law approach; if there is
no prospect of incarceration, it is impossible to characterize legislation as criminal. By contrast, there
may or may not be jail for administrative offences. In effect, then, using jail as the criteria for
dividing criminal and administrative approaches errs, if at all, by exaggerating the number of
jurisdictions that take a criminal law approach.
In the Transport Canada Publication, “Assessing the Potential Impact of Lowering the
Legal Blood Alcohol Limit to 50 MG% in Canada,” TP 13321 E, November 1998, prepared by the
Addiction Research Foundation, a different method of characterization, which is not explained, was
used. When discussing the per se limit of 50, the authors characterized Finland, Greece, Netherlands,
Norway, Portugal and Sweden to be criminal. Using the minimum criteria of the risk of incarceration
for offenders as the criteria for identifying criminal approaches, none of these jurisdictions are
criminal at levels between .05 and .08, because in none of them can first offenders go to jail at such
levels.
100
This column shows whether jail is possible for a simple, first BAC offence comparable to section
253(b).
101
Source: NHTSA “On DWI Laws in Other Countries”, March 2000.
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Belgium102
.05 criminal
- jail possible at .05
(15 days - 6
months)103
- set fine
- suspension at .05
Denmark104
.05 administrative
.20 criminal
- no jail possible until
.20
- fines increase with
BAC
- .05 no suspension
- .12 conditional
suspension
- .20 unconditional
disqualification
Finland105
.05 administrative
.12 criminal
- jail only possible at
.12
- fine at .05
- suspension only
possible at .10
France
.05 administrative106
.08 criminal107
- jail only possible at
.08108
- fine at .05
- suspension only
possible at .08109
Germany110
.05 administrative
.11 criminal
- jail only possible at
.11
- fine at .03 if
accident; at .05
without
- suspension at .05
increasing with BAC
Greece111
.05 administrative
.11 criminal
- jail only possible at
.11
- fine at .05
- suspension only
possible at .08
102
Source: NHTSA “On DWI Laws in Other Countries”, March 2000.
103
In Transport Canada Publication, “Assessing the Potential Impact of Lowering the Legal Blood
Alcohol Limit to 50 MG% in Canada,” TP 13321 E, November 1998, prepared by the Addiction
Research Foundation, the authors report that in Belgium, “eventual prison is possible,” suggesting
that jail is typically not imposed for first offenders.
104
Source: NHTSA “On DWI Laws in Other Countries”, March 2000.
105
Source: NHTSA “On DWI Laws in Other Countries”, March 2000.
106
Source: NHTSA “On DWI Laws in Other Countries”, March 2000.
107
Code La Route, chapitre 4, Article L234-1.
108
Code La Route, chapitre 4, Article L234-1.
109
Code La Route, chapitre 4, Article L234-2.
110
Summary sheet supplied to author by German Embassy, Ottawa, on request - on file with author.
111
Summary sheet supplied to author by Greek Embassy, Ottawa, on request - on file with author.
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Netherlands112
.05 administrative
.21 criminal
- jail only possible at
.21113
- fine at .05
- suspension only
possible at .13 or
higher
Norway114
.05 administrative
.15 criminal
- jail possible at .15
- fine possible
- suspension at .05
Portugal115
.05 administrative
.12 criminal (becomes offence
under Code of
Criminal Procedure)
-jail possible at .12
- fine at .05,
increasing with BAC
- suspension at .05
Spain116
.05 administrative
- jail not possible
- fine at .05
- suspension at .05
Sweden117
.02 administrative
.10 criminal
- jail possible at .10
- fines possible at .02
- suspension at .03
Australian Capital
Territory118
.05 administrative
.08 criminal
- jail possible at .08
- fine at .05
- suspension at .05
New South Wales119
.05 administrative
.08 criminal
- jail possible at .08
- fine possible at .05
- prohibition
mandatory at .05
112
Source: NHTSA “On DWI Laws in Other Countries”, March 2000.
113
www.alcoweb.com “Alcohol Health - Legislation on BAC levels” records prison as an option at a
BAC of .25.
114
Source: www.alcoweb.com, Alcohol Health - Legislation on Blood Alcohol Levels. In the Transport
Canada study, “Assessing the Potential Impact of Lowering the Legal Blood Alcohol Limit to 50
MG% in Canada,” TP 13321 E, November 1998, prepared by the Addiction Research Foundation,
Norway is recorded as permitting conditional jail terms for BACs between .051 and .100. Contra
NHTSA “On DWI Laws in Other Countries”, March 2000, based on a survey response from the
Norwegian equivalent to the NHTSA, which disclaims entirely the possibility of jail. Efforts to
obtain the Norwegian legislation on the Internet or from the Norwegian embassy have proved
unsuccessful.
115
Source: NHTSA “On DWI Laws in Other Countries”, March 2000.
116
Source: NHTSA “On DWI Laws in Other Countries”, March 2000. Note: At the time of the
NHTSA study, the prohibited BAC limit was .08, but the study notes that as of 6 May 1999, the
BAC would be lowered to .05. Efforts to obtain the Spanish legislation on the internet, or from the
Spanish Embassy have proven unsuccessful. It has been assumed for the purpose of this chart that
the penalty regime was not varied with that amendment.
117
Source: NHTSA “On DWI Laws in Other Countries”, March 2000.
118
Traffic (Alcohol and Drugs) Act 1977, ss.4, 19, 26 and 32.
119
Road Transport (General) Act 1999, ss. 9,.24, 25 and Schedule 2.
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Northern Territory120
.05 criminal
- jail possible at .05
- fine possible at .05
- suspension possible
at .05, mandatory at
.08
Queensland121
.05 criminal
- jail possible at .05
- fine possible at .05
- suspension at .05
South Australia122
.05 administrative
.08 criminal
- jail possible at .08
- fine possible at .05
- 2 mos. suspension
mandatory at .05, with
longer suspension
possible
Tasmania123
.05 criminal
- jail possible at .05
- fine possible at .05
3 mos. suspension
mandatory at .05, with
longer suspension
possible
Victoria124
.05 administrative
- no jail possible for
first BAC offence
- fine possible
- suspension at .05
Western Australia125
.05 administrative
.15 criminal
- no jail possible
unless impaired;
deemed at .15 to be
impaired
- fine at .05
- suspension at .05
It can be seen, then, that of the 12 European countries that use a .05 BAC, only one
(Belgium) uses a criminal law approach at .05, while only two (Belgium and France) use a criminal
law approach at BACs below .08. When Australia is added to the mix, of the 20 comparison
jurisdictions that have .05 BACs, only four use a criminal law approach at .05, while only eight of 20
use a criminal law approach at BACs below .08.
To get the full measure of the different approaches that are taken internationally, it would
be useful to hypothesize two drivers, one having a BAC of .06, and one having a BAC of .09, and to
examine the potential penalties available in the comparison jurisdictions.
120
Traffic Act, s.19, 20A.
121
Transport Operations (Road Use Management) Act 1995, s.79(2); Traffic Act 1949, s.16(2).
122
Road Transport (Alcohol and Drugs) Act 1977, s.4C, 19, 26, 32.
123
Road Safety (Alcohol and Drugs) Act 1970, s6(1), 17.
124
Road Safety Act 1986, ss.3, 49, 50.
125
Road Traffic Act 1974, ss.63, 64, 64AA.
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TABLE 8 - POTENTIAL PENALTIES AT .06 FOR .05 JURISDICTIONS
AND CANADA: FIRST OFFENDERS
JURISDICTION
JAIL
FINE
SUSPENSION
Canada
Not possible
Not possible
Not possible
Austria
Not possible
Set fine
Not possible
Belgium
Possible
Set fine
15-30 days
Denmark
Not possible
Set fine
Not possible
Finland
Not possible
Set fine
Not possible
France
Not possible
Set fine
Not possible
Germany
Not possible
Set fine
3 months
Greece
Not possible
Set fine
Not possible
Netherlands
Not possible
Set fine
Not possible
Norway
Not possible
Not possible
Possible126
Portugal
Not possible
Set fine
1 month(est)127
Spain
Not possible
Set fine
3 months
Sweden
Not possible
Variable fine
2 - 12 months
Australian Capital
Territory
Not possible
Variable fine
6 months
New South Wales
Not possible
Variable fine
6 months
Northern Territory
Possible
Possible
up to 12 months
Queensland
Possible
Possible
3 months128
South Australia
Not Possible
Variable fine
2 to 6 months
Tasmania
Possible
Possible
2 to 12 months
Victoria
Not Possible
Variable fine
up to 6 months
Western Australia
Not Possible
Variable fine
3 months
126
Duration unavailable.
127
The suspension is graduated between one month to two years depending on the reading. Since this is
the lowest BAC it is assumed that the suspension would be in the one month range.
128
The suspension is 3 to 9 months depending on reading. Since .051 is the lowest illegal reading, 3
months has been selected for the chart.
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As can be seen, jail is only possible at readings of .06 in four of the 20 comparison
jurisdictions. These four jurisdictions also use driving suspensions. Of interest, neither jail, nor
driving suspensions are used at BACs of .06 in six of the 20 jurisdictions. These six jurisdictions
treat low BAC violations as the functional equivalent of ticketed offences.
Of the 10 jurisdictions that use fines and driving suspensions, plus Norway (which relies
exclusively on suspensions) the suspensions tend to be short, ranging from 15 to 30 days up to 6
months. Only three jurisdictions contemplate longer suspensions of up to 12 months.
TABLE 9 - POTENTIAL PENALTIES AT .09 FOR ALL
COMPARISON JURISDICTIONS: FIRST OFFENDERS
JURISDICTION
JAIL
FINE
SUSPENSION
Canada
Possible
$600 CDN minimum
1 year minimum,
up to 3 years
Austria
Not possible
Set fine
4 week minimum
Belgium
Possible
Set fine
15-30 days
Denmark
Not possible
Set fine
Not possible
Finland
Not possible
Set fine
Not possible
France
Possible
Set fine
up to 3 years
Germany
Not possible
Set fine
3 months
Greece
Not possible
Set fine
2 months
Netherlands
Not possible
Set fine
Not possible
Norway
Not possible
Not possible
Possible129
Portugal
Not possible
Set fine
A few months(est)130
Spain
Not possible
Set fine
3 months
Sweden
Not possible
Variable fine
12 month minimum
Australian Capital
Territory
Possible
Possible
12 months
New South Wales
Possible
Possible
12 months
129
Duration unavailable.
130
The suspension is graduated between one month to two years depending on the reading. Since this is
among the low to midrange BACs it is assumed that the suspension would be in the few month
range.
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Northern Territory
Possible
Possible
Up to 12 months
Queensland
Possible
Possible
3 - 9 months
South Australia
Possible
Variable fine
2 to 6 months
Tasmania
Possible
Possible
3 to 12 months
Victoria
Not possible
Variable fine
up to 6 months
Western Australia
Not possible
Variable fine
3 months
Italy
Possible
Possible
Maximum 1 month
Ireland
Possible
Possible
Information
unavailable
New Zealand
Possible
Possible
6 month minimum
Switzerland131
Possible
Possible
Not possible
United Kingdom
Possible
Possible
Possible though
rare132
Alabama
Possible
Possible
maximum 90 days
Alaska
Not possible
Not possible
Not possible
Arkansas
24 hour minimum
$600 minimum133
3 month minimum
Arizona
10 day minimum
$150 minimum
30 day minimum
California
96 hours minimum
$390 minimum
30 days
Colorado
Not possible
Not possible
Not possible
Connecticut
Not possible
Not possible
Not possible
Delaware
Not possible
Not possible
Not possible
District of Columbia
Possible
$300 minimum
Possible
Florida
Possible
$250 minimum
30 days
Georgia
Possible
$250 minimum
120 days
Idaho
Possible
Possible
30 days
Illinois
48 hour minimum or
community service
Not possible
Not possible
131
Source: www.alcoweb.com, Alcohol Health - Legislation on Blood Alcohol Levels.
132
NHTSA “On DWI Laws in Other Countries”, March 2000.
133
Minimum fines for US jurisdictions are reported in US dollars.
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Indiana
Possible
Possible
180 days134
Iowa
Not possible
Not possible
Not possible
Kansas
48 hour minimum
$200 minimum
1 year
Louisiana
Not possible
Not possible
Not possible
Kentucky
48 hour minimum
$200 minimum
Not possible
Maine
Possible
$400 minumum
Not possible
Maryland
Possible
Possible
Not possible
Massachusetts
Not possible
Not possible
Not possible
Michigan
Not possible
Not possible
Not possible
Minnesota
Not possible
Not possible
Not possible
Mississippi
Not possible
Not possible
Not possible
Missouri
Possible
Possible
30 days
Montana
Not possible
Not possible
Not possible
Nebraska
Possible
Possible
30 days
Nevada
Not possible
Not possible
Not possible
New Hampshire
Only if aggravated
$350 minimum
6 months
New Jersey
Not possible
Not possible
Not possible
New Mexico
48 hour minimum
$300 minimim
30 days
New York
Not possible
Not possible
Not possible
North Carolina
Not possible
Not possible
Not possible
North Dakota
Not possible
Not possible
Not possible
Ohio
Not possible
Not possible
Not possible
Oklahoma
Not possible
Not possible
Not possible
Oregon
Possible
$1000 minimum
30 days
Pennsylvania
Not possible
Not possible
Not possible
Rhode Island
Not possible
minimum fine
Not possible
South Carolina
Not possible
Not possible
Not possible
South Dakota
Not possible
Not possible
Not possible
134
Terminates on disposal of charges if within 180 days.
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Tennessee
Not possible
Not possible
Not possible
Texas
Possible
Possible
Not possible
Utah
48 hour minimum
$700 minimum
90 days
Vermont
Possible
Possible
90 days
Virginia
Possible
Possible
7 days
Washington
24 hour minimum
$300 minimum
30 days
West Virginia
24 hour minimum
$100 minimum
30 days
Wisconsin
Not possible
$150 minimum
Not possible
Wyoming
Possible
Possible
Not possible
Hawaii
48 hour minimum
$150 minimum
30 days
A number of observations can be made from the preceding table.
Total Number of Jurisdictions Where .09 is an Offence
C
In 22 of 77 jurisdictions (all American), driving with a BAC of .09 is not an offence.
It is in Canada.
Use of Fines, Jail and Licence Suspensions
C
In Canada the law provides for fines, jail and a mandatory licence revocation for
persons convicted at .09. Of the 77 comparison jurisdictions examined, 32 of the
other jurisdictions permit fines, jail and licence suspensions or revocations, while 45
(including the 22 American jurisdictions where .09 is not an offence) do not. In 23
jurisdictions where .09 is an offence, it is not possible to receive fines, jail and
suspensions.
Incarceration
C
Approximately half of the jurisdictions permit incarceration for persons having
BACs of .09, namely 39 of 77. Canada permits incarceration in such cases.
C
Eleven of 77 jurisdictions, all American, impose a minimum period of incarceration
for persons having BACs of .09. Canada does not.
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Canada’s Blood Alcohol Laws — an International Perspective
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Fines
C
Eighteen of the 77 jurisdictions employ minimum135 fines. Canada does as well.
Converting US dollars, the fine in Canada is among the highest minimum fines
employed.
C
Of the jurisdictions that use fines, in 20 fines are possible but not mandatory. In
Canada they are mandatory.
Suspensions and Revocations
C
At one year, Canada is tied with four other jurisdictions for the longest mandatory
licence revocation or suspension. Canada is tied with France for the longest
potential suspension, at three years. However, Canada alone has a one year
minimum.
C
In 34 of the 77 jurisdictions (including 22 American jurisdictions where .09 is not an
offence) it is not possible for a driver to have his or her licence revoked or
suspended for driving with a .09 BAC. In Canada a revocation is required.
Treatment of .09 drivers in .05 Jurisdictions Compared with Canada
C
In 12 of the 20 jurisdictions that have .05 BACs, jail is not possible for drivers
having BACs of .09. Jail is possible in Canada.
C
In only 3 of the 20 jurisdictions that have .05 BACs is a 12 month licence
suspension or revocation possible for drivers having a BAC of .09. It is possible in
Canada.
None of the 20 jurisdictions that have .05 BACs imposes minimum fines on drivers
having a BAC of .09. Canada does.
C
VI.
Conclusion
It can be seen from a comparison of relevant international legislation that little can be learned about
whether Canada should amend the Criminal Code of Canada to provide for BACs of .05. While most
relevant comparison countries do use BACs of .05 in their legislation, most independent legal jurisdictions
within those comparison countries do not.
More importantly, the approach to BAC law
internationally is complex and varied. It is too simplistic to use as precedents for Canada, those
countries and jurisdictions that have adopted .05 limits. Those countries tend not to use criminal
law approaches, which is what Canada would be doing by amending the Criminal Code.
135
A minimum fine differs from a set fine in that where a minimum fine is imposed, the judge is free to
impose more than the minimum. For set fines, the judge is not.
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The implications of a simplistic comparison, in which the twenty .05 jurisdictions are relied
on, can be made most clearly in this way. A non-impaired driver at a BAC of .05 is better off in
Canada than in these other 20 jurisdictions (as the Canadian driver will receive, at most a 24 hour
licence suspension). However, a driver who, despite a BAC of .09, does not exhibit signs of
impairment, will be treated less severely in any of the countries that use .05 BACs than in Canada.
In Canada, the driver at .09 faces the risk of jail, which he or she would not in 12 of the 20
comparison countries. In Canada the driver would face a minimum fine, which the driver would not
in any of the 20 comparison countries. In Canada the driver would face a minimum licence
revocation, which he or she would in but 15 of the comparison countries, and that revocation
would be longer here.
Whether it is a good thing or not to adopt a .05 BAC in the Criminal Code of Canada is
beyond the scope of this study. What is clear, however, is that it can be distorting rather than
illuminating to attempt to make the case for moving to .05 in Canada, by invoking foreign
legislation.
This Report was prepared for the Canada Safety Council by
Professor David M. Paciocco,
Faculty of Law, University of Ottawa
March 5, 2002
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