BC’s impaired driving law: administrative sanctions over criminal prosecution

Yesterday the BC Court of Appeal dismissed a challenge to the Province’s 2010 impaired-driving law. The law, designed to reduce alcohol-related collisions, was introduced on September 20, 2010, and mandated automatic and immediate penalties such as licence and vehicle seizures, driving bans, and fines for people who receive “warn” or “fail” readings on roadside breathalyzer tests or who refuse to provide a sample.

The successful defence of this law may now clear the way for similar policing approaches to other road safety and public health problems.

The implementation of the 2010 law represented a significant shift in strategy: instead of pursuing criminal prosecution, police adopted a pragmatic approach intended to increase efficiency with a focus on public health: removal of the hazard, removal of the mechanism by which others are exposed to the risk, and creation of a very public and immediate disincentive to engage in the undesirable behaviour. Offending drivers were taken off the road, their vehicles impounded, and they were left to explain to others why they were unable to drive for a period of time. The Criminal Code of Canada was not used as part of this policing/public health approach. The shift to administrative penalties allowed better efficiency in processing drinking drivers than if offenders were charged under the Criminal Code, since criminal convictions while more severe, had lower certainty of punishment and required police to commit considerable resources to each case. Almost immediately, rates of impaired driving behaviour in BC declined sharply. The BC Justice Minister claims that the law has resulted in a 52% reduction in alcohol-related motor vehicle fatalities, or 190 lives saved.

The effect on fatality rates is pretty striking (source here and here):

Looking at the figure above, this public health and road safety good news story begs a question:

Could a similar approach be used to combat distracted driving or excessive speed?

Distracted driving in particular has been receiving steadily increasing media and government attention. The Office of the Superintendent of Motor Vehicles produced a discussion paper five years ago outlining the seriousness of the problem. It is now a factor in more BC road fatalities than impaired driving, and increases in crashes due to driver distraction or inattention are seen worldwide. Drivers’ use of electronic devices are of particular concern. Viewed in light of BC’s current penalties for impaired driving, the penalties for improper use of electronic devices appear dated and weak (and the penalties below reflect new laws that came into effect in January 2010).

Penalties for impaired driving, BC, 2014:

Breathalyzer readingPenalty
Warn (BAC 0.05 - < 0.08)- Driver’s licence seizure;
- 3-day driving prohibition (for first time caught in the warn range);
- 7-day driving prohibition (for second time caught in the warn range within five years);
- 30-day driving prohibition (for third time caught in the warn range within five years)
Fail (0.08+)- Driver’s licence seizure;
- 'Notice of Prohibition' starting immediately – removing driving privileges for 90 days
Source: Office of the Superintendent of Motor Vehicles (http://www.pssg.gov.bc.ca/osmv/prohibitions/impaired-driving.htm)

Penalties for distracted driving, BC, 2014

OffensePenalty
The use of an electronic device that is not allowed for in legislation but that does not involve texting, e-mailing or dialing, e.g., talking on a hand held cell phone.- $167 fine
- no penalty points
The use of an electronic device for communicating with another person or another device by e- mail or other text based message, e.g., texting, e-mailing or dialing.- $167 fine; and
- 3 penalty points
Source: Office of the Superintendent of Motor Vehicles, "Use of Electronic Devices While Driving: Definitions and Violation Fines"

Distracted driving puts vulnerable road users disproportionately at risk, just at a time when planners and environmental and health advocates are working to get people to use active transportation to increase physical activity and improve the communities in which we live. Safety concerns are already among the biggest issues cited for people considering active transportation options; further heightened concerns due to increases in distracted driving could negatively affect the population health benefits gained by the wider adoption of active transportation choices if people are less willing to expose themselves to the risk presented by distracted drivers—a risk that is largely beyond their control, and one against which they have little or no protection. Cyclists and pedestrians have good reason to be concerned about their vulnerability in the presence of distracted motor vehicle drivers:

“Driver distraction is impacting vulnerable road users who have the least amount of protection in the event of a crash: pedestrians, cyclists and motorcyclists. These three groups of road users suffer from visibility issues, other driver processing issues and a general lack of crash protection – in other words they are physically smaller and may not have good lighting systems; their presence is not mentally processed by drivers to the degree that vehicles are; and they have little or no protection in the event of a crash, i.e., no protection from a vehicle crumple zone, a seat belt or an air bag. Because of these factors, vulnerable road users are more susceptible to vehicle drivers that may be distracted. Driver distraction delays reaction time and when reaction time is delayed, even for a few seconds, the consequences can be dramatic and can make the difference between life and death in the event of a crash.”

— Addressing the Problem of Distracted Driving and its Impacts to Road Safety 

Distracted driving is presenting a new challenge for efforts to create healthy, sustainable communities. Perhaps it’s time to take a cue from the success of BC’s impaired driving laws and look at how to get ahead of the growing problem of distracted driving on BC’s roads.

Road safety: leveraging positive externalities

I’ve often argued that giving road users the means to video record traffic around them not only gives them a tool to protect themselves from liability, but that if cameras are widely adopted they can be expected to reduce undesirable behaviour. This clever ad for the Fly6 rear-facing camera for bicycles nails it:

Vulnerable road users are especially, well, vulnerable as drivers become less courteous and more aggressive, and as distracted driving surpasses drinking and driving as a cause of crashes. That “people do the right thing when they know they’re being watched” is well-documented (as long as one defines “the right thing” as conformity to social expectations). Video camera technology is now reaching the point where the size, weight, video quality, recording capacity, and battery life of cameras not only make a “dash cam for bicycles” possible, but the price of the cameras is dropping rapidly. We are on the verge of having a practical product available at a price many cyclists would be willing to pay.

Here’s the thing though: this might be the start of a bigger change than simply having more cyclists riding around with cameras. On an individual basis, some cyclists with cameras will certainly benefit from documenting incidents and being better able to prove liability. But what’s really interesting is that cameras are being introduced into a social system, and the mere existence of cameras can be expected to reduce the very adverse behaviours that the cameras were designed to document in the first place. Furthermore, once the prevalence of cameras in the cycling population reaches a sufficient level, we can expect drivers to be less aggressive towards even those cyclists not using cameras because, to an inexpert eye, the Fly6 looks like an ordinary bicycle tail light.

Fly6 rear cameraStandard LED bicycle tail light

See? It’ll be pretty hard to tell the difference from 50 feet away.

The upshot? With a sufficient number of bicycle cameras on the road, it will become general knowledge amongst drivers that cameras like the Fly6 are commonplace but they won’t know who’s riding with a camera and who isn’t. That’s called a positive externality: a safety benefit that is enjoyed by cyclists who did not incur the cost of purchasing a camera themselves. And that’s a good thing.

We’re going to see significant adoption of video recording devices amongst drivers and cyclists over the next few years. As I write this, Fly6 has smashed their AUD$95,000 Kickstarter goal by raising over AUD$215,000 with 10 days remaining in their fundraising deadline. Another recent Kickstarter campaign for the Rideye forward-facing camera has been similarly successful. The market is clearly now ready for devices such as these. This wasn’t the case even a year ago, when a Kickstarter campaign for the Spectacam video camera system, which recorded both forward and rear-view video, proved unsuccessful.

I’ve owned a Countour HD sport video camera for a couple of years, and I can mount it on my bike to document traffic incidents when I ride. The thing is, I often don’t use it. Why? The device is inconvenient: mounting it on the bike is clunky, it’s too heavy to have on my helmet for long rides, and it has insufficient battery life and memory card capacity for a typical road ride. One important feature of the Fly6, Rideye, and Spectacam is loop recording; all other sports-oriented video cameras currently on the market don’t have an option for loop recording, so they simply stop recording when the memory card fills up.

Some commentators have characterized the proliferation of video recording by citizens in public spaces as a movement towards a Big Brother mass-surveillance dystopia. But it’s actually anti-Big Brother: it gives individuals the means to record their surroundings in public spaces where others could do them harm—including recording the police. This is empowering, and in fact turns the panopticon on its head: rather than the state or a central authority doing all the watching, the incentive for social conformity comes from the people on the streets themselves.

The increased availability of cameras for both cars and bicycles will not just provide victims of road crashes with documentation for damage and injury claims; hopefully the knowledge that dangerous or aggressive behaviour may be recorded will lead to improved behaviour by all road users, making it safer for everyone. Concerns about safety are consistently cited as being among the biggest deterrents for cycling. If the adoption of camera systems improves perceived safety, then the resulting increase in bicycle ridership leads not only to safety in numbers, but savings in health care costs resulting from increased physical activity and the improved health in the population overall. The benefits of increased safety goes far beyond reduction of crash injuries.

Bicycle video cameras are coming, and they are part of the solution. It’s a win for everyone!