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(Photo: Contributed)
(Photo: Contributed)

Virtual prohibition?

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By Devon Brooks

New penalties are pushing drinking back into a socially unacceptable status

Prohibition, was a strangely moralistic, yet sadly irrelevant time in which various elements from society did their best to ban alcohol because of its detrimental effects. In Canada prohibition was run by the provinces, starting with Prince Edward Island in 1901 and ending there in 1948. At one point every province signed on, even if it was for only a few months in Quebec.

While alcohol consumption did go down, mostly it went indoors and underground. Today we are moving in that same direction.

Recently this province, prodded by Mothers Against Drunk Driving (MADD), has acted to tighten up drinking and driving by pushing up the penalties.
Officially of course this is not prohibition. You can still drink in public, restaurants and bars are still allowed to serve alcohol, but the effect will ultimately be the same.

Under the latest legislation blood alcohol content (BAC) limits have not changed, but the penalties have. Since 1977 police have been required to warn drivers not to drink after they reach a .05% BAC.

Oddly enough, the .05% limit is still called a “warn” even though a failed warn now comes with immediate penalties of a three day driving ban, a $200 administrative penalty, a $250 license reinstatement fee and likely cost of vehicle impoundment of $100 to $200 for the three days. Total costs will therefore run around $500 to $600. For any driver who receives another “warn” within five years penalties escalate, going up as high as $4,060 according to the B.C. government.

Andrew Murie, CEO for MADD Canada, is cheering the government’s decision. He says, “We commend the Government of British Columbia for these important changes. This province now has the strongest administrative sanctions for impaired driving in the country.”

Administrative sanctions suggest penalties like those associated with parking tickets, but the consequences here are far more serious and they are scaring people.

Responding to criticism by the Vancouver Police Union in October that the new penalties had police chasing social drinkers, Murie responded, “We need to be clear that police are not out there targeting people who are between .05% and .08%.”

Paul Jones, co-owner of Summerland’s Vanilla Pod restaurant, feels that is exactly who the new rules are going after. He says, “The new, bigger fines aren’t directed at the right people.” Heavier drinkers aren’t discouraged, he claims, but casual drinkers are.

MADD estimates 35 to 45% of driving under influence drinkers are problem drinkers or alcoholics. The remaining 55 to 65% are drivers who “drank too much on that particular day.”

Ideally, MADD believes any alcohol is too much. “While we would certainly encourage people to separate their drinking from driving entirely, we want people to understand that the .05% BAC law does not infringe on someone’s ability to have a glass of wine or a drink with dinner, or join friends for a beer after work,” Murie said.

MADD states, “It takes more than one drink for most people to reach the .05% BAC level.”

The last statement is the rub, especially the word ‘most.’ Every statement out there by police, MADD or the government contains one of these words: ‘most,’ ‘usually,’ or ‘average’ when it pertains to how much you can drink and stay under .05%.

In Kelowna RCMP Superintendent Bill McKinnon hosted several media personalities for a drink and breathalyzer session at a local pub. Here are some of the results after two hours (from a report on Castanet):

Wayne Moore of Castanet, who weights 203 pounds, had four beers and blew .023% BAC Don Plant from the Daily Courier, who weighs 156 pounds, had four Caesars and received a reading of .024% BAC Adrian Nioeczym, a freelance reporter weighing 175 pounds, had two sleeves (pints) of beer and blew .039% BAC Ken Molgat from the CTV, who weighs 171 pounds, had six ounces of vodka over two hours and received a .041% BAC reading Gord Vizzutti from AM 1150 News, who weighs 196 pounds, had four glasses of wine and blew over .05% BAC Klaudia Ceglarz from CHBC News, who weighs 124 pounds had two glasses of wine in “about an hour’s time,” and blew over .05% BAC.

Uncertainty equals Fear

It wasn’t revealed how much over .05% Vizzutti and Ceglarz blew, which is unfortunate because it reinforces the uncertainty. The real problem here is just that: the uncertainty.

Few people are going to take a chance, especially responsible drinkers, if it might result in a summary conviction, hundreds of dollars in fines and the loss of use of one’s automobile.

Superintendent McKinnon and MADD may both say misinformation is causing the problem, but MADD and the police are part of that problem.

Consider that among the media Moore and Vizzutti had only seven pounds in weight difference between them, but Moore blew only .023% (less than half of a warning) while Vizzutti blew over .05%. Both had four drinks.

Every BAC chart out there comes with a caveat that how much you can actually drink depends on your weight, gender, age, how much you have eaten, other medications or drugs in your body, duration of time while imbibing and time since drinking, and your own personal metabolism.

There is no official B.C. BAC chart, but you can find many others online. You will also find they don’t agree. So, a BAC chart put up by the State of Virginia (see left) shows that a 160 pound man or a 140 pound woman can consume one drink before they would gate crash the .05 limit. The same chart says 40 minutes is enough time to eliminate .01% of BAC. Other BACs differ, suggesting that most men or women in those respective weight ranges are good with two drinks, but they’ll need an hour to eliminate that amount of alcohol.

In the end it comes down to this: If you have a drink or two before driving, are you confident enough of those statistics to face down a breathalyzer at the side of the road?

Many moderate drinkers are not that confident, which means this legislation is either a tax grab, or else it is indeed targeting, perhaps unintentionally, the casual, social drinker.

Steve Turton’s family has owned the rural McCulloch Station pub in east Kelowna for more than a dozen years. He says the new penalties will not deter the heavy drinker who tended to ignore the .08% limits, but it does drive away the occasional drinker. He says, “The people who came two or three times a month have stopped drinking.”

That may be a victory for MADD, but it could possibly kill Turton’s business, which is down he estimates, by about 20%.

Certainly the 13 Monks restaurant in West Kelowna, which just closed, believes that the government’s new rules are largely responsible (see photo).
For those who do come, Turton says, they drink less. People will now order one drink, if they order any. Food at McCulloch Station is a loss leader to attract people in for some drinks. If people stop drinking, McCulloch stops being profitable. He says, “I don’t know how many pubs can survive [with patrons] having one drink.”

Murie disagrees, saying, “These sanctions are not an attack on the social drinker they are not a strike at the hospitality industry they are not an undue burden on police resources.”

Ian Tostenson is the CEO of the BC Restaurant & Foodservices Association. There are few solid statistics in yet, but he says feedback from his members indicates sales are off this fall by 20 to 30%.

Tostenson says the real impact of this legislation will hit some establishments much harder than others. In Vancouver public transit or taxis are readily available. In rural B.C. it’s a different matter.

Safety at Any Cost

“These sanctions are an effective and realistic way to make British Columbia’s roads safer from impaired drivers,” says Murie. All the arguments about how this might affect pubs, restaurants or any aspect of the economy seems self serving when comparing profits to injuries and fatalities.
The question then isn’t dollars and cents, but how much safer do the laws make us and can they work?

The benefits and costs of a reasonable limit on a social activity, like drinking, that can cause harm needs to be assessed. After all, every activity we engage in has some risk from driving a car (even with zero alcohol) to athletic activities like skiing or walking down the street.

The British Columbia government is parroting a statistic found on the Ontario government’s website, that says a driver at .05% is seven times more likely to have an accident than a driver who doesn’t drink. The United Kingdom shows considerably different statistics. In that country the estimate is given as a range, with drivers reading .05 BAC going from zero to about 2.5 times as likely to have an accident.

The New Zealand Ministry of Transport publishes one of the most comprehensive set of statistics on motor vehicle crashes. From 2006 to 2008 approximately 5 drivers out of a total of 170 killed in accidents had a BAC less than .05. There were 15 with blood alcohol content between .05 and .08, leaving the vast majority, 150 of them, at .08 or more.

Currently New Zealand has a .08% BAC level for impaired driving (with a much lower limit of .03% for drivers under the age of 20) that country has cut its rate of fatalities due to alcohol or drug use by 62% from 1989 to 2008 through education and penalties without changing the .08% legal limit.
What did change was the introduction of much harsher penalties for those who went over .08 BAC or were repeat offenders.

Another change was the relaxation of the drinking age, from 20 to 18 years of age. So even though more people were allowed to drink, and at a younger age, which represents the demographic most likely to drink and have an accident, the number of fatalities and injuries declined.

Back at the Vanilla Pod, Jones doesn’t have firm numbers on how much his business is down yet, but he relates two relevant anecdotes. The Vanilla Pod offered this year, as it has in past years, a dinner celebration linked to the Okanagan Wine Festival. Jones says one couple from Kaleden cancelled when they found a taxi ride would cost $150, but even if they had been willing to pay it’s doubtful it would have mattered. A well-to-do couple from West Kelowna also cancelled a three-month reservation because they couldn’t secure, in advance, a taxi. Says Jones, “The biggest problem we have is we don’t have the infrastructure to get people home.”

Turton’s pub is offering Kelowna residents a free or very inexpensive ride home in a van so they can enjoy some drinks without having to worry. He doesn’t have final numbers yet, but agrees with an estimate that Tostenson provides, that offering such a service will probably cost $75,000 to $100,000 per year.

Turton says he has received lots of positive response about the van service, but relatively few takers. Despite efforts to make the service as customer friendly as possible, casual drinkers just aren’t coming. He says he will run the service for six months to see if the situation improves.

Some larger events at the Okanagan Wine Festival, might be beneficiaries of the new penalties. According to Christina Ferreira from the Okanagan Wine Festivals society, attendance was up at the main tasting events. “What we did notice was at signature events there was a huge increase in the use of our [free] taxis.”

Back in the early 1900s we tried prohibition. Despite all the embarrassment, punishments, crime and prosecutions at that time large numbers of people still wanted to get together and drink. Perhaps a slow, hidden approach to prohibition will work this time, because the new liquor laws are going in the same direction – a repeal of the right to drink in public places. Even in urban centers, but definitely in rural British Columbia, driving after drinking whether it is with a bottle of wine at dinner or from the pub is standard practice. Cutting out that practice is hurting many businesses, for a dubious benefit because the people who drink responsibly are most fearful of penalties.

Jones says he has sent a letter off to his MLA protesting the law. He is not alone it seems.

Minister of Public Safety and Solicitor General Rich Coleman has already come out, promising the new penalties will be reviewed. Meanwhile he says it is a matter of police using discretion in their decision to penalize those who register above .05, but police discretion doesn’t address the real issue. It only adds another degree of uncertainty.

Either these new penalties are effective, worthwhile and enforceable, in which case society and business will have to suffer the costs, or this sneaking, virtual prohibition should end up on the scrap heap like earlier, well-intentioned, but ultimately futile, legislation.

2011 Update

Since this story was written the province has backed off marginally to a 0.06% limit before fines are imposed and vehicles are impounded. This was done, according to Solicitor-General Rich Coleman, to address concerns about possible inaccuracies in breathalyzers. Coleman also criticized police for being too quick to impound vehicles, which seems like a cowardly attempt to pass responsibility for the new legal sanctions to the police who are doing exactly what the regulations instructed them to do. Whatever the case there, Coleman’s announcement is still not reflected in policies shown on the government’s website, which states that the penalties can be applied for a BAC of .05% or more. Since our interview, Ian Tostenson of the BC Restaurant and Foodservices Association summed up the effect of the new sanctions on the food and beverage industry: “The impacts have been horrendous.”

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