Getting Government Out Of Your Mouth
So the big news in Canada right now (having temporarily avoided another election) is that the Canadian Federal Justice Ministry is considering, “a new law that would allow police to conduct random breathalyzer tests on drivers, regardless of whether they suspect motorists have been drinking.”
Groups like MADD are, not surprisingly, in favour of the idea (MADD brief on RBT here). MADD Chief Executive Andrew Murie is selling the idea thusly (same link),
Murie said its biggest selling point is that it improves road safety, with drunk driving fatalities dropping 36 per cent in Australia after legislation was introduced, and 23 per cent in Ireland when it made the change.
“In the European Union, they demand that their countries, as part of membership for road safety, have sophisticated random breath testing because of the difference it’s made in lives saved,” he told CBC News.
Murie said the change would allow police at roadblocks to conduct about three times as many breathalyzer tests because they would not need to spend time determining whether there is “reasonable” suspicion a driver has been drinking.
And, indeed, a report (possibly the same mentioned by Murie, there is no link provided) on random breathalyzer testing in Ireland demonstrates that the number of road deaths has decreased,
Perhaps predictably, that impact has resulted in fairly significant support for the measure amongst various citizens.
However, the Western Australian Ombudsman issued a report in 2001 that came to the following problematic conclusion about the statistics bandied about in that country with regards to random breathalyzer testing,
The falsification of random breath testing statistics at the suburban police station and traffic office discussed in this report demonstrate that the system of compiling random breath testing statistics is open to abuse. Officers motivated to falsify records have ample opportunity to do so and are not likely to get caught. It is therefore important to consider the likelihood of police officers falsifying records.
Perfectly valid concerns about police abuse that the above statement brings up aside, I’m inclined to side with CBC readers when they indicated opposition to the idea via the associated poll (see first link). While I’m concerned with the infringement of civil liberties that testing without probable suspicion involves, there are two additional reasons I find the suggestion problematic.*
Firstly, I’m not convinced that this measure really addresses the problem. Certainly if police have greater freedom in applying breathalyzer tests, there is a decent chance that they will catch more people drinking and driving and have a resulting downward impact on deaths that arise from drinking and driving. And certainly there will be some mitigating impact on peoples’ inclination to drink and drive if there are more tests being conducted. But can we really rest our heels once we’ve reduced drinking and driving related deaths by 25%? What about 30% Is 50% enough?
The point is that what needs to be addressed, really, is that the decision on someone’s part to consume enough alcohol to impair their driving and drive in spite of that fact is a failure in both in the discrimination of their reasoning and their sense of responsibility to others. It might be pie in the sky to suggest that we can reduce the numbers of deaths to zero, but, as nopted in this American case,
The continued increased attention to hardcore drunk drivers – those who drive at a high blood alcohol level (.15 and above), do so repeatedly, and have demonstrated a resistance to change – has been and will continue to be essential to the reduction in alcohol-impaired traffic fatalities.
The suggestion of increased random breathalyzer tests isn’t designed to spot “hardcore drunk drivers” who are “resistant to change” who are most directly responsible for high alochol-impaired traffic fatalities, as such drivers are generally much easier to spot given their levels of intoxication. Rather, the initiative is designed to catch people who have a “slip in judgment” and doesn’t really address the slip at its source.
The second reason for my skepticism is that, as seems all too often to be the case here in Canada, the responsibility for addressing the issue naturally gravitates to the government when, in reality, individuals addressing one another’s irresponsibility plays at least as large a role in curbing the behaviour. Call it the conserv-a-tarian in me coming out, but it worries me that Canadians so often seem to divulge themselves of responsibility for addressing social concerns because of what I would call their historically ingrained deference to authority and belief that things will be taken care of for them that to which Will actually pointed in a respnse to my “violence in America” post (vis-a-vis Mark Steyn) that has more salience than Will perhaps gave credit, at least based on my own first-hand cultural experience
Can one indict every Canadian as passive? No. But there is an element of passivity that does seem to run through Canadian culture, which I think has at least something to do with our general perceptions about “being governed”. The topic of this post strikes me as another, albeit somewhat tangential, indication of that (to me) troublesome issue.
It is, of course, a tough thing to look at someone who has lost a friend or family member to a drunk driving accidnt and tell themn that we ought not to do whatever we can to stop those deaths. I just hapen to think there are other and better ways of doing so that don’t involve an infringement of civil liberties — and it would seem that I’m not alone in that belief.
* Endnote: I have edited the noted sentence in light of Will’s comment because I felt like I misrepresented how I actually felt on the issue of civil infringement vis-a-vis these tests.
34 comments
Good post. But I might quibble with the idea that driving at .08 is somehow an abdication of responsibility. MADD and its cohorts are true zealots. I can understand their passion. And clearly, the cultural norm that prevailed prior to, say, the 1980s, was out of whack. But it’s just getting ridiculous.
And it’s getting ridiculous across the board. The smoking bans, the fat taxes and all the other public health “advancements” surely signify some kind of sickness in the culture.
Even as a nonsmoker, the bans make me madder than anything. Gah. A saloon should be a saloon.
A lot of interesting stuff to digest here, but I will say that the civil libertarian implications of this law bother me quite a bit more than they bother you. I think the idea that citizens cannot be stopped and searched absent some reasonably compelling suspicion is a bedrock of limited government.
Scott H. Payne Reply:
October 7th, 2009 at 12:26 pm
I should say that, as indicated by the final line of the post, the civil libertarian implications don’t not bother me (to use the dreaded double negative), but I think there are other and wider implications at work here that bother me more and are not totally divorced from the concerns surrounding civil liberties.
I’ve got no problem with properly implemented, nondiscriminatory drunk driving checkpoints. I don’t see much of a difference between police randomly checking the registration status of cars parked on the street and randomly checking the BAC of drivers going through some particular chokepoint. A sizable percentage of people leaving large sporting events in the States are too drunk to drive safely absent the real threat of a checkpoint. I do think the 0.08 standard ought to be raised at these checkpoints though, and that any statute allowing these searches should dictate that the car itself not be searched in any way, officers involved should not deal with anything other than the test except for an ongoing crime, etc. And folks should be universally or randomly stopped w/out any room for officer discretion.
From a civil libertarian standpoint, what’s the difference between drunk driving checkpoints and airport security?
Here in Baltimore, during periods of high crime, the police set up random car search checkpoints in corridors that are used to go crosstown; that’s more of a concern.
A lack of statistical rigor is more or less a consistent factor in studies on the effectiveness of criminal justice initiatives. Look deeper into almost any claim of some program working miracles and you’ll see something to be concerned about.
Dave Reply:
October 7th, 2009 at 1:03 pm
I’ve got no problem with properly implemented, nondiscriminatory drunk driving checkpoints. I don’t see much of a difference between police randomly checking the registration status of cars parked on the street and randomly checking the BAC of drivers going through some particular chokepoint.
My definition of a nondiscriminatory checkpoint would be to check every driver. I’ve seen these sorts of things in NYC and what the cops end up doing is basically asking you how you’re doing close enough to be able to smell liquor when you answer back. The smell of alcohol triggers probable cause and the search. I don’t necessarily have a strong Fourth Amendment opinion on this one way or the other, except to say that advocates of non-random checkpoints for drunk driving have a very strong public safety argument given the well-documented problems with driving under the influence of alcohol.
…and that any statute allowing these searches should dictate that the car itself not be searched in any way, officers involved should not deal with anything other than the test except for an ongoing crime, etc.
As an example (and criminal law isn’t my bag so I may butcher this badly), if person A is suspected of driving under the influence at a checkpoint, he/she can be tested and the car can be searched for alcohol. If the search for alcohol is legal and it turns up evidence of another crime, then there’s nothing unreasonable or unconstitutional about using the evidence obtained from an otherwise legal search to prosecute person A for other crimes he/she may have committed.
Zach Reply:
October 7th, 2009 at 1:16 pm
Basically; I’m cool with it if every single person is breath-a-lyzed (this isn’t technologically impossible), the tested population is randomly selected, etc. As far as a crime in progress, that should be limited to crimes that are actively endangering someone’s safety, and I’m talking about this regarding everyone who comes through the checkpoint, not those who blow 0.15, although I don’t see that blowing 0.15 after a football game is probable cause for a search anyway, or at least that one’s necessary. The statute authorizing random BAC tests should contain safeguards against these sorts of things so that officers don’t abuse these tests to go fishing for other crimes.
Dave Reply:
October 7th, 2009 at 1:30 pm
The statute authorizing random BAC tests should contain safeguards against these sorts of things so that officers don’t abuse these tests to go fishing for other crimes.
It would certainly raise a few eyebrows to see law enforcement making arrests for other crimes based on evidence uncovered during a search at a DUI checkpoint when Breathalyzer tests indicate a BAC of 0 or something close to it.
I’d think that hard core drunk drivers would be very hard to detect. One can develop tolerances, have high blood content and be very functional. Weekend warriors are the ones that don’t know their personal limits and glide from side to side.
I’m certainly not in favor of nanny-ism. However, just for arguments sake, I’d posit that driving isn’t a right and therefore completely open to regulation and testing. I wouldn’t be opposed to pilots being tested before flight, this would be a more pedestrian version of this.
Hmm interesting stuff. I would be against this just on the civil rights grounds that the fuzz should not be able to stop and conduct a search without a reason.
However you touch on one issue that is think is at the heart of the divide between us freedom hating liberals and conservatives/libertarians.
“the responsibility for addressing the issue naturally gravitates to the government when, in reality, individuals addressing one another’s irresponsibility plays at least as large a role in curbing the behaviour.”
It seems like the conserve/libertarian position embodied in this quote is that be having government do something is an abdication of responsibility and/or not allowing individuals to be responsible for themselves. I think this is incorrect in a couple of ways. Each person is responsible for their behavior regardless of laws. If I kill somebody drunk driving then I am responsible. I just don’t see how having a law against it somehow made me less wrong. Personal and public responsibility are simply two different things. In fact it is often conservatives who criticize liberals for not holding people responsible for their actions. Yet they seem to be doing that themselves. Just because there is a law does not take away my responsibility to not drink and drive. Again each is a separate issue. Additionally government laws, like those that mandate bartenders stop serving drunks, impart more responsibility on the individual. Yes that is under the fear of a penalty, but it does make people responsible, where they had often not been, and at one of the likely points where they can have an impact.
More importantly , the idea that having the government do something is directly taking action, not avoiding it. Government provides a service much like a McDonalds or a roofing company. I pay each one to do things for me. Government has powers and an area of action that others don’t. If I ,or a group, says the gov should do something, we are essentially hiring them to do a job for us. Does anybody claim that by hiring a roofer to put a new roof on my damn house I am not taking responsibility or allowing the Nanny Roofer to run my life???? Assigning the gov to do certain tasks is one of the powers we have in a democracy. That is a good thing and part of why democracy is good. We get to tell the gov to do things for us.
( just assume all the obvious caveats about how gov can go overboard, needs to have restrictions on its powers and is sometimes wrong)
Dave Reply:
October 7th, 2009 at 1:17 pm
It seems like the conserve/libertarian position embodied in this quote is that be having government do something is an abdication of responsibility and/or not allowing individuals to be responsible for themselves.
Actually, this libertarian’s response would be that while there is an individual responsibility element to not consuming alcohol and using your car like a missile to kill people, this is a public safety issue that is completely valid to address under even a classically liberal police power scenario. Whether or not we agree on the details is small potatoes at this point.
I just don’t see how having a law against it somehow made me less wrong
It doesn’t and I know of no libertarian would say it does. Law’s function is not to act as an agent of responsibility but to deter you from engaging in certain acts by imposing penalties in the event that you do them.
Does anybody claim that by hiring a roofer to put a new roof on my damn house I am not taking responsibility or allowing the Nanny Roofer to run my life????
I am specifically asking a roofer to engage in that activity on my behalf, usually in exchange for money. It’s a VOLUNTARY transaction. Transactions involving government are forced. Big difference.
Assigning the gov to do certain tasks is one of the powers we have in a democracy. That is a good thing and part of why democracy is good. We get to tell the gov to do things for us.
Democracy is two wolves and a sheep deciding what to eat for dinner.
ThatPirateGuy Reply:
October 7th, 2009 at 1:27 pm
Since we are currently in flu season does no-one else wonder if this intervention might actually kill or harm more than it saves through the potential spread of infectious disease?
greginak Reply:
October 7th, 2009 at 1:28 pm
Well in a democracy we have a voice to say what should be passed, constitution to provide some limits but no assurance that we like every law. Living in a free, democratic country implies acceptance of the fact that there are laws and we may not like all of them.
Democracy sux, so what is your solution?
I was aiming my response not just at libertarians but at a common issue I see with conservatives and libertarian thought.
Dave Reply:
October 7th, 2009 at 1:34 pm
Democracy sux, so what is your solution?
The constitutional republic we have.
I was aiming my response not just at libertarians but at a common issue I see with conservatives and libertarian thought.
I guess I disagree because I don’t see this issue for the reasons I explained above. Maybe I’m missing something. Wouldn’t be the first time.
greginak Reply:
October 7th, 2009 at 2:02 pm
yes we have a constitutional republic that is a democracy…( Hey you got your democracy in my republic, hey you got your republic all over my democracy)
In any case, I still have yet to see the conceptual problem with assigning/hiring the gov to do tasks. that seems like one of our powers in a constitutional republic that is a democracy. I can see not liking certain laws, which as American’s we all use our rights to complain about. I think most of issues are about whether we like or don’t’ like a specific law. Americans and maybe Canuck’s tend to put everything in stark rights based/moralistic language which leads to some ideological tiffs.
I see a lot of arguments from the right like the term “nanny state” which has a lot of embedded meaning, that is don’t think has as much power as people who use it like to think.
Eh. Look at the stats of who has had the law dropped on them after about a year.
I’m guessing that it’ll be the Inuit and the refugee/immigrant communities that, for some reason, will have the highest percentage of arrests.
Cascadian Reply:
October 7th, 2009 at 12:57 pm
First Nations? I’m hoping for my ex.
Jaybird Reply:
October 7th, 2009 at 2:34 pm
Additionally:
Look at the percentage of arrests that have *NOTHING* to do with BAC.
If it’s more than X% (and, yes, it probably will be), then they’re just looking for reasons to pull people over.
Given that the permit to operate a motor vehicle on roads constructed by the government is a positive and not a negative right, I’m not sure I agree with the civil liberties implications of this. If you don’t want to be subject to breathalizer tests, I think the simplest measure is to not use the government services (in this case roads and your driver’s license).
Nob Akimoto Reply:
October 7th, 2009 at 1:34 pm
Okay, that sounded a bit more glib than I intended.
But if this is a problem, would mandating that all cars have ignition systems that are keyed into a breathalizer be more desirable? What would the difference in the two cases be?
How is this for example different from having vision tests prior to getting your driver’s license?
Dave Reply:
October 7th, 2009 at 1:40 pm
I don’t think it sounded that glib.
Fair points, but i would contend that even if the government grants positive rights, it does not necessarily follow that in exchange for those rights you have to give up any liberties under our Constitution. That is also known as the doctrine of unconstitutional conditions.
Should all welfare recipients be subject to a search of their home as a condition of receiving welfare?
ThatPirateGuy Reply:
October 7th, 2009 at 1:45 pm
I am sure you could get 20% -40% for that proposition easily if you put it to a poll.
Dave Reply:
October 7th, 2009 at 1:51 pm
Probably more. I would staunchly oppose it, as I have in the past.
Dave Reply:
October 7th, 2009 at 1:55 pm
http://eastcoastlibertarian.blogspot.com/2007/12/welfare-receipients-and-fourth.html
ThatPirateGuy Reply:
October 7th, 2009 at 2:08 pm
As would I.
Mark Thompson Reply:
October 7th, 2009 at 2:39 pm
Hmm…the positive rights argument here is an interesting and I think possibly persuasive one, and I think it may be materially distinguishable from the case of the welfare recipient that Dave links to from his old blog. The distinction to me is that the stops are directly germane to the scope of the positive right at issue and occur while that positive right is being exercised on publicly-owned roads. In the case of welfare recipients, you’re talking about otherwise unconstitutional searches that have absolutely nothing to do with ensuring that the right is being exercised within its scope.
That said, I’m not so sure about the breathalyzer-ignition mandate, although that’s not a Fourth Amendment issue at all so much as it’s just a basic nanny-state issue. I could maybe be persuaded on it if we raised the legal limit back to at least .12. Even then, I still have concerns about costs and the absolutism of it, but the benefits to it would be very significant, and it wouldn’t restrict one’s ability to go to the bar and have a couple drinks without causing a major safety hazard.
Good post, Scott. My idea would be to lower the drinking age, and de-stigmatize alcohol consumption for younger drinkers (in the home). Make it less edgy, less cool. Whatever. Europeanize it. Random breathalyzers is a big no-no in my book.
Nob Akimoto Reply:
October 7th, 2009 at 2:02 pm
How about mandating the installation of breathalizers to ignitions on all motor vehicles?
Nob Akimoto Reply:
October 7th, 2009 at 2:04 pm
Also…
I don’t think europeanizing the culture behind drinking will fix anything when the actual infrastructure/living conditions in North America are considerably more reliant upon cars. Unless you’re planning to europeanize the entire demographic distribution of everyone in the US and Canada…(which I would think is a considerably more dicey move in the paternalism front) I don’t see how that’ll actually reduce the incidences of drunk driving.
It’s not like binge drinking is the core cause of most accidents. It’s usally people who’ve just had “a couple” that are the most dangerous.
greginak Reply:
October 7th, 2009 at 2:13 pm
The culture around drinking is far to varied and ingrained to change it. There are powerful social sanctions and rules around drinking that can’t be created, they must evolve. What are you ED, some kind of social engineering liberal? (insert smiley face here)
I don’t like this either; it doesn’t strike me as necessary, and it seems equivalent to subjecting someone to a search when you have no reasonable suspicion that they have committed a crime.
Also, the mention of police falsifying reports is disturbing and given recent events, I don’t trust cops and dislike the idea of giving them any stronger powers than they already have.
This is a good point and a serious problem. I used to respect cops North of the line a bunch more than the south. Nowdays…. this is really unacceptable. We need to train our police better and be more careful in hiring.
“The distinction to me is that the stops are directly germane to the scope of the positive right at issue and occur while that positive right is being exercised on publicly-owned roads.”
Good points. And I hate to make a slippery slope argument. But… This is a pretty slippery slope. The government pays for sidewalks. We expect people to walk on them safely, and without the intention of harming others. But many people commit crimes on sidewalks. (Purse snatching. Armed robbery. Assault.)
So by walking on the sidewalks, do I tacitly give the police the right to search me to make sure that I am doing so within the scope of their intended purpose? The sobriety checkpoints assume that some percentage of people are operating outside the scope of acceptable people. Which is correct. But it’s also correct that many people walk the streets with a gun. The mere possesion of which is a crime.
I have researched the area of impaired driving for over a year now and the more I read about it, the more I feel our rights are being violated. And here is why….
Looking at the statistics of alcohol use among fatally injured drivers from 1998 to 2006 available from the Traffic Injury Research Foundation (an independent organization) the percentage of drivers killed with an (old legal limit) BAC of .08 to .16 averages out at 82%, whilst the percentage of drivers killed (while double the old legal limit) averages out at 57%.
When you look at the statistics for the drivers killed with BAC’s ranging from .05 to .08, the numbers fall off dramatically, averaging at 6% of drivers tested, and the statistics of those at BAC’s from .01 to .049 average at 11%.
This is what Canada Safety Council insists the problem is with a hard core minority of drivers and maintains, “High-BAC drivers (i.e. those with BACs over 0.15) represent about one per cent of the cars on the road at night and on weekends. Yet they account for nearly half of all drivers killed at those times.”
(Now before anyone asks, the average testing rate for the presence of alcohol for drivers varies in these years from 83 to 84%, so we know we have covered the bulk of fatally injured drivers)
The really strange thing is, why bring in Random Breath Testing at a time when the limit has now being reduced to .05 , if the statistics show the problem is with a minority of people who are simply not responsible. Toronto saw the evidence of the hard core drunk driver recently when we saw three lives erased in an instant by a blackguard accomplishing NASCAR speeds on Finch Avenue.
By introducing the RBT, all you are going to do is widen your net, with a lower BAC to catch the people who we would assume are law abiding, as they were not dying in large numbers from 1998 to 2006, there is no reason to think they will change their spots now and drive impaired.
Lest you forget every fish you catch is worth a minimum of $150………
If these new law comes in and we start having to deal with Judge Dredd style law, what is next. These are worrying times. Regarding the use of Ireland as proof for the introduction of these draconian policies, it must be noted, (and special interest groups like MADD touting Ireland as a shining example of the success of RBT’s will not tell you this) that in this jurisdiction, you still have to be convicted of the offence of impaired driving.
The statistics on impaired driving show as plain as the nose on your face,that the majority of people obey the laws of this great land but it is cold comfort when you look up from the operating table to see the surgeon brandishing an axe instead of the required scalpel, and think to yourself.
“Is the cure worse than the disease?”