Here is some free legal advice: if the police detain you for drinking and driving, don’t tell them to go arrest some real drunk drivers. Variations on that phrase are also not advisable, such as “go arrest some real criminals.” And it’s best never to mention doughnuts.
We say this because from time to time we see this in DUI police reports and it’s never a good thing. First of all, criticizing the police is dangerous particularly on a dark lonely road where they’re holding a tazer and writing down their version of the evidence. Secondly, any variation on any of those phrases is almost guaranteed to undermine your credibility later on. Even if you’re 100% innocent, uttering something like that can sink your ship because it provides a reason, specious or otherwise, to reject your evidence. So don’t do it.
But still, could it not be argued that the police are targeting the wrong people with the IRP drunk driving law? Would it not be better to go arrest some real drunk drivers?
ASDs aren’t designed for real drunk drivers
The thing about the IRP scheme is that it all relies on the results of Approved Screening Device tests, i.e. roadside breathalyzer tests. Approved Screening Devices (ASDs) were introduced to address a particular problem with the police. Some RCMP studies in the 1970s determined that police officers were perfectly capable of identifying the real drunks (i.e. the people who are at a high blood-alcohol content “BAC” and who pose a clear and present danger to anyone on the road) but that they were not often able to identify the people with a BAC near the legal limit.
This was a problem because many drivers who were just over .08% were allowed to continue down the road. Some were at .150% and allowed down the road. A driver might be able to fake sobriety, but at .150% they pose a notable threat on the road. The police determined that the best way to sort out the drunks from those who just had some liquor on their breath was to introduce ASDs.
We don’t use ASDs for real drunk drivers
ASDs are to be used when a police officer has a suspicion that a driver has alcohol in their body, but little more. If the police officer has reasonable grounds to conclude the driver is drunk, they are not to use an ASD but rather they are supposed to detain the person for impaired driving and conduct an impaired driving investigation.
In other words, if the person looks drunk, then the police should not use an ASD.
In all cases where an Immediate Roadside Prohibition is served, the police used an ASD or at least claim that they did. ASDs were not intended to catch the people who are real drunks. They were intended to screen people who are near the threshold — almost sober enough to driver but perhaps slightly over the legal limit.
What’s happening with the real drunks under the IRP scheme?
We see many cases where, if the officer’s evidence is to be believed, they should never have used an ASD because the driver was plastered. The only reason that the police in those circumstance use an ASD is because they want to issue an IRP to that individual. They’re not interested in arresting a real drunk driver. Because it’s easy, they simply use an ASD and issue an IRP.
The fact of the matter is that most real drunk drivers, people who are clearly plastered, are issued IRPs. Real drunk drivers, who are almost falling down drunk, are issued IRPs virtually every day in this province. Instead of arresting drunk drivers and collecting the evidence to punish them, the police simply use an ASD in over 90% of all drunk driving investigations and issue the driver a 90-day IRP.
The broad spectrum from alleged to actual drunk drivers
If you’re the average woman and you have 3 regular-sized glasses of wine over 2 hours, you will probably blow Fail on an ASD. You might drive, walk and talk normally and pose little or no threat to the public if you’re behind the wheel. You will be issued a 90-day IRP with all of the stigma that’s attached to it.
If you’re an average 32 year old male and you drink 12 beers on a Saturday afternoon before hammering back a couple of rum and cokes, chances are that your BAC is in the .200% range. You’re wasted and lucky for you, and everyone else, if the police stop you before you collide with some family in a Chevy Cavalier. In this case, just like the almost-sober woman above, you too will be issued a 90-day IRP.
Go arrest some real drunk drivers!
If you’re the typical woman who get’s a 90-day IRP after 2-3 glasses of wine, it hardly seems fair to be lumped in with the guy who drinks 14 drinks and then goes swerving down the road. The real drunk is getting a big break because with a high BAC such a driver poses a significant risk to the public at large. They’re getting off light with an IRP.
On the other hand, the light drinker who is just on the edge is getting hit disproportionately hard. Despite being reasonably careful, the light drinker will suffer the same punishment and the same stigma as the driver who is wasted.
From that perspective we can understand the frustration. If you’re standing at a roadblock and you blow a Fail, and you feel fine and you’re looking fine and you were careful all night, it’s not fair that you’re issued an IRP. It’s even less fair when you think that the police could be out looking for that guy who is driving around with a BAC of .200%. Why don’t they go arrest some real drunk drivers like that guy?