MADD Canada

National Newsletter - Summer 2011

Many Hospitalized Impaired Drivers Avoid Charges

MADD Canada calls for changes to federal law for the collection of BAC evidence.

Few impaired drivers who are hospitalized following a crash are charged, let alone convicted, because Canada’s existing law makes it so difficult for police and health professionals to collect BAC evidence.

A 2004 British Columbia study found only 11% of hospitalized drivers with BACs over .08% were convicted of any Criminal Code impaired driving offence. Similarly, only 16% of injured alcohol-impaired drivers admitted to an Alberta trauma centre between 1995 and 2003 were convicted of federal impaired driving offences, despite having a mean BAC of .19%, or almost two and half times the Criminal Code limit. By comparison, 85% of hospitalized impaired drivers in Sweden were convicted of impaired driving offences.

The problem lies with the considerable amount of information police must gather to comply with the legal requirements to obtain a blood sample from a patient who is hospitalized:

The law prefers the use of breath samples over blood samples, even in a hospital setting where it would more efficient and timely to take a blood sample.
In many cases, the police need information about the suspect’s physical condition which can only be obtained from the suspect’s physician. Yet, health professionals who release patient information without consent or statutory authority breach their common professional and statutory confidentiality obligations.
The present statutes require the collection of evidentiary samples within three hours of the impaired driving offence. Often, the police cannot establish grounds for demanding these evidentiary blood samples within this time. In other comparable democracies, blood samples are taken when the patient enters the emergency department and are held in a secure location within the hospital until the police have independently established grounds for the seizure.

The shortcomings of the current system are apparent in national charge and conviction rates; while impairment-related crashes caused 1,278 deaths in 2006, only 1 37 drivers were charged with impaired driving causing death and only 36 were convicted.

MADD Canada has urged the federal government to address this important safety issue by making changes to the Criminal Code to: eliminate the preference for breath samples as
evidence of BAC when suspects are taken to hospital; and identify (in the Criminal Code and various privacy statutes) what information medical personnel are required to provide to
police during the course of an impaired driving investigation.

With relatively modest changes to the Criminal Code, we can increase the likelihood that admissible BAC evidence is available, while clarifying the obligations of health care professionals and maintaining the rights of patients. Such changes would bring Canadian law in line with most comparable developed democracies, and prevent hospitals from becoming a safe haven for impaired drivers who kill and injure others.

Resources:

For more information, please visit the Research Library on MADD Canada’s web site at www.madd.ca. Click on Research Papers, then Federal Policies and look for:

Prosecution for Impaired Drivers Who are Involved in Fatal or Personal Injury Crashes By Roy Purssell, Luvdeep Mahli, Robert Solomon and Erika Chamberlain
British Columbia Medical Journal, November 2010.

Enforcing Impaired Driving Laws Against Hospitalized Drivers: The Intersection of Healthcare, Patient Confi dentiality, and Law Enforcement By Erika Chamberlain and Robert Solomon Windsor Legal Review of Social Issues, April 2010.