Issue Report: Random sobriety tests for drivers

Are random breath tests for drivers a good idea?

Background and context

Random breath testing of drivers for excess alcohol in the blood is a policy that intends to bring down the number of drink drivers. The European Commission believes that the police forces of all member states of the European Union should be able to conduct random breath tests. This could, for example, involve officers being sent to a different road every day and pulling over perhaps every hundredth car to subject its driver to a compulsory breathalyser test. If the driver failed the test, they would be prosecuted and mostly likely punished. However, some countries (such as the UK) have laws that state that drivers can only be tested if officers have a reason to believe that they have been drinking, usually because of the erratic manner in which they have been driving. This has therefore been a debate in Europe for some time. Random breath testing for alcohol is currently legal in several EU countries, and in Australia, where drivers may be stopped at any point along any road by a police officer for a “random breath test”, commonly referred to as an “RBT”. In the United Stated, Mothers Against Drunk Drivers has been lobbying across the country to implement random alcohol tests. Many states and municipalities have implemented such checks and many others are considering the idea.

Rights: Are random searches consistent with individual rights?

Random sobriety tests are a just public safety intervention

Robert Solomon, a law professor at the University of Western Ontario and the director of legal policy for MADD Canada, argues that implementing random sobriety tests on roads would be a just impingement on Canadian’s lives because of the death and injury toll drunk driving is inflicting there: “We have one of the worst records for impaired driving of any comparable democracies.” In a paper he co-authored in 2010, he reported The totals for 2007 as being worse than seven years earlier: 210,000 impairment-related crashes, 1,239 deaths, 73,120 injuries. All of this, he argues, justifies the invasiveness of RBT; it protects people and saves lives.

Operating dangerous vehicles requires giving up some rights.

The U.S. Supreme Court held in 1991 that a sobriety-checkpoint program in Michigan did not violate the Fourth Amendment to the federal Constitution. The reasoning by six of the nine justices was that driving a car is a dangerous and regulated activity, and that citizens in their cars are not as immune from police intrusions as when they are in their own homes.

Random breath tests are done to public vehicle drivers.

It can hardly be called an invasion of privacy or an investigation without due cause, because random tests are routinely carried out by many train and bus companies and are being introduced on airlines as well. This is not considered a breach of employee privacy because public safety is at stake. The same applies for other drivers, who are a major liability to the safety and lives of other drivers.

RBT just an extension of already strict driving regulations.

Mothers Against Drunk Driving (MADD)

“Driving is a heavily regulated, licensed activity occurring on public roads. Drivers are already required to stop and provide documentation when requested by police, and expect to be asked questions about their licenses and sobriety. The Canadian courts have upheld the constitutionality of this random stopping, searching and questioning of drivers in order to maintain traffic safety. RBT would simply be an extension of these court-approved interventions.”

"Reasonable suspicion" too high standard for detecting drunk drivers

"Random breath testing: A needed and effective measure to prevent impaired driving fatalities." BCMJ. December 10th, 2009

“Unless a driver admits to drinking, the police currently need clear visible signs that the driver has consumed alcohol or was driving in an impaired manner in order to demand a roadside screening test. Using this approach, police miss the great majority of drivers with BACs above .05%, even at sobriety checkpoints.”

RBT has been successfully implemented in many modern democracies

"Random breath testing: A needed and effective measure to prevent impaired driving fatalities." BCMJ. December 10th, 2009

“Random breath testing has been in place in most comparable democracies for as long as 30 years. Finland, Sweden, and France enacted RBT in the late 1970s, followed by Norway and most Australian states in the 1980s, New Zealand and most European countries in the 1990s, and Ireland in 2006. In 2003, the European Commission recommended that all 26 member states introduce comprehensive random breath testing programs.” All of this suggests that RBT can be implemented in ways consistent with individual rights in a modern, liberal democracy.

Random sobriety tests amount to unreasonable searches

"Random breath tests for DUI is a bad idea." Canadian Cincinnatus. October 7th, 2009

“In a free society it should be the case that a citizen can move about at will without ever being hindered by the police. The job of the police officer, who used to be called a peace officer, is to keep the public peace. If the public peace has not been broken he should leave well enough alone, not go around making criminals out of people minding their own business. It is for that reason that the traditional requirement of ‘reasonable grounds” was put into place.”

Randomly testing employees is different than testing citizens.

People who have to take random breath tests to drive trucks or fly planes as part of their jobs are taking the test as part of their job. They are being paid and must do what their employer wants them to do in order to keep their job. Searching random people outside of the context of employment with no suspicion of a crime is very different. It erodes civil liberties and sets a dangerous precedent.

Random breath tests are an inconvenience and make people angry.

Generally speaking, inconveniencing innocent people and introducing random sobriety tests into their lives will make many people angry. They may feel violated, on-edge, suspicious, and some times just annoyed. Whether or not that anger or frustration is justified is another matter; these feelings themselves are a negative externality of random breath tests that should be counted against them.

Utility of stopping every car doesn't justify breach of rights.

Dissenting US Supreme Court justices argued in a case that struck down an effort to ban random drug tests in Michigan

“That stopping every car might make it easier to prevent drunken driving…is an insufficient justification for abandoning the requirement of individualized suspicion.”

"Random" breath tests likely to be implemented unequally

Canadian Liberal MP Ujjal Dosanjh and the former attorney general of British Columbia and a member of the House justice committee

“I wouldn’t want the east side of Vancouver monitored more than the west side of Vancouver because there is a clear economic division in the city.”

Innocent do have something to fear from unjust searches.

"Random Breath Testing Violates Charter Rights" Green Party of Canada. March 4th, 2010

“The ‘logic’ that the innocent have nothing to fear from such searches rests on the presumption that there is never a miscarriage of justice by the authorities. If we remove Charter protection, then we have only the good judgement of the authorities to rely on. History tells us that by itself this is not enough.”

Random sobriety stops set-up unjust detection of other crimes

"Random breath tests: A frightening trial-baloon from Rob Nicholson." A BCer in Toronto. October 5th, 2009

“this would seem to open up a huge can of legal worms. You randomly pull someone over for a random breathalyzer test, someone that under normal circumstances you have no legal probable cause for doing so. And in that process, while they blow clean you discover they have committed another offense: let’s say, the possession of a small amount of marijuana.”

Random breath tests create slippery slope to expanding police powers

Police will use breath tests as excuse for unreasonable searches

Efficacy: Are they effective at stopping/deterring drunk driving?

Random breath tests help deter drunk driving

Mothers Against Drunk Driving (MADD)

“RBT deters impaired driving by increasing the perceived chance of detection. For example, in New South Wales, 90% of drivers surveyed thought they might be breath tested.”

A 1995 review by the European Transport Safety Council concluded, “There is wide agreement in the international scientific literature that increasing driver’s perception of the risk of being detected for excess alcohol is a very important element in any package of measures to reduce alcohol related crashes.”

People drive drunk because they can get away with it

Mothers Against Drunk Driving (MADD)

“Millions of Canadians continue to drink and drive because they can do so with little fear of being stopped, let alone charged and convicted. Recent survey results and charge and conviction data indicate you could drive drunk once a week for more than 3 years before ever being charged with an impaired driving offence, and for over 6 years before ever being convicted. Other survey data would put the figures closer to 6 and a half years before a charge, and nearly 13 years before a conviction.”

Random alcohol breath tests reduce accidents, save lives

The Centers for Disease Control, in a 2002 Traffic Injury Prevention report, found that in general, the number of alcohol related crashes was reduced by 20% in states that implement sobriety checkpoints compared to those that do not. Oregon State Sen. Rod Monroe, D-Portland, extrapolates that such a reduction would mean 30 fewer alcohol-related deaths on Oregon highways, 2,100 fewer serious injuries and millions of dollars in savings to the health care system. Those would be substantial gains

RBT has been successful in countries that implement it

"Random breath testing: A needed and effective measure to prevent impaired driving fatalities." BCMJ. December 10th, 2009

“The Australian RBT programs, which have been the most extensively studied, have resulted in dramatic reductions in impaired driving deaths and injuries. For example in Queensland, RBT was estimated to have reduc­ed total fatal crashes by 35% between 1988 and 1992, preventing 789 fatal crashes in that period. In Tasmania, RBT was credited with reducing all serious crashes by 24% in its first year. Similar results have been reported in a number of other countries. Most recently, Ireland’s introduction of RBT in July 2006 was reported to have reduced total annual road fatalities by 19% from the preceding 12 months.”

Random alcohol tests are more effective than alternative measures.

The federal Justice Department of Canada moved to implement Random Breath Testing (RBT), concluding

“a system of random checks is more effective than a combination of other measures such as a lower threshold for blood alcohol level and more frequent RIDE checkpoints.”

Random breath testing doesn't necessarily lower drunk driving

Many countries have had random testing for some time and have seen no real fall in drink driving figures. For those that have seen such a fall, can you distinguish the effects of random testing from the accompanying advertising and awareness campaigns, which can also be without the testing?

Little evidence random alcohol tests deter drunk driving.

ing. There is a dearth of research regarding the deterrent effect of checkpoints. The only formally documented research regarding deterrence is a survey of Maryland's "Checkpoint Strikeforce" program. The survey found no deterrent effect

“To date, there is no evidence to indicate that this campaign, which involves a number of sobriety checkpoints and media activities to promote these efforts, has had any impact on public perceptions, driver behaviors, or alcohol-related motor vehicle crashes and injuries. This conclusion is drawn after examining statistics for alcohol-related crashes, police citations for impaired driving, and public perceptions of alcohol-impaired driving risk.”

Repeat drunk drivers unlikely to respond to RBT deterrence.

"Random breath tests for DUI is a bad idea." Canadian Cincinnatus. October 7th, 2009

“One statistic the MAD bunch doesn’t like to mention is the fact that half of the people killed by drunk drivers have at least double the legal blood alcohol limit. They don’t like it because it implies that, on a sliding scale, drivers who are barely over the legal limit are probably not that bad. It suggests that problems associated with drunk driving are overwhelmingly caused by a small cadre of hard-core problem drinkers who are sloshed behind the wheel. Unfortunately, these are also the people who are the least responsive to legal incentives, so MAD – and the law – targets ordinary people who have a glass or two of sherry instead.”

Everyone knows drunk driving is wrong.

Of course drink driving is wrong. You are wasting time trying to convince us of that – we all know it. The debate has to be about whether random testing will do anything, and whether it is proportionate to the problem concerned. People still continue to drink drive regardless of knowing they are breaking the law and aware that they may be breath tested. Roads and transport ministers in Australia have even been booked for drink driving.

Most drunk drivers aren't caught through random breath tests.

The majority of people caught drink driving have not been from random breath tests. They have been from tip-offs, police chases and police pulling over suspects, not random breath testing. That suggests that random breath tests might be one of the less effective means of catching drunk drivers.

Police resources: Are they a good use of police time/resources?

Good use of police to cultivate awareness on drunk driving.

Guaranteeing a culture of awareness that the driver might be subjected to testing – and thereby ensuring people drink responsibly – can be achieved by random testing. It’s a good investment of police time, which will ensure a cultural change that is desperately needed.

Random breath tests worthwhile; stop offenders, keep roads safe.

You cannot say that random breath testing is a waste of money. They act not only as a deterrent to drunk driving, but they catch offenders who aren’t deterrent. Advertising alongside random breath testing also works to lower road death rates and keep innocent pedestrians and car passengers safer. You cannot say that saving lives is a waste of money.

Police are already performing random alcohol stops.

In reality, even where random testing is not allowed, most officers realize that this is necessary – that is why they often make up reasons to stop people (like claiming they were driving erratically) in order to carry out a de facto random testing system already.

Police time is better spent pursing proper offenders.

Police time is better spent pursuing those about whom there are concrete suspicions, rather than trawling society at large in the hope of turning something up. Most random breath tests deliver negative alcohol results and it mostly a waste of time. Also, because it is random, offenders could get past while police test thousands of innocent drivers. Since police officers realise this they often (as happened in Western Australia) falsify the information for tests, making up tests, etc. in order to get the requirement to conduct them out of the way – so they can do proper police work.

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