Articles

WHY OUR LAWS CAN’T NAIL DRUNK DRIVERS

He is a greater killer than polio, yet our archaic laws let him get away with murder. Scientific tests could check highway horror

FRED BODSWORTH March 15 1950
Articles

WHY OUR LAWS CAN’T NAIL DRUNK DRIVERS

He is a greater killer than polio, yet our archaic laws let him get away with murder. Scientific tests could check highway horror

FRED BODSWORTH March 15 1950

WHY OUR LAWS CAN’T NAIL DRUNK DRIVERS

Articles

He is a greater killer than polio, yet our archaic laws let him get away with murder. Scientific tests could check highway horror

FRED BODSWORTH

IT WAS one of the first motor fatalities I covered as a cub reporter. They had moved the small, twisted body to the sidewalk and covered it with a clothesbasket. One fat little leg hung over the curb, a grotesque right-angle bend halfway between knee and ankle. A splinter of red-and-white bone protruded through the shin. The other leg was twisted like a Z, the kneecap upward, toes straight down. I couldn’t see the boy’s face. Blood cut narrow snakelike trails across the sidewalk. The police hadn’t arrived yet.

In a doorway a young mother sobbed convulsively. Men and women glanced bitterly at the death car 200 feet down the street. The driver was still in it, hunched over the wheel. A man had taken the ignition key. “Drunk,” he said. “Can’t even stand up.”

It is a familiar tragic story to traffic police. It is becoming more familiar every year. And each year, frustrated policemen find thenjselves up against the stone wall of a horse-and-buggy criminal code which makes it possible for scores of drunken potential killers to evade the law.

Early last year near Barrie, Ont., a truck carrying three men and three women roared down the highway weaving from side to side; finally it crashed head-on into a bus. One woman looped through the air, struck the pavement in front of a passing vehicle. The driver heard a muted crunch as his wheels passed over her. Glass, jagged metal and blood showered the highway. A boy looked at the smashed head of a corpse, turned white, but was able to remark: “Why do they call brains grey

matter—they’re red?” Five of the six in the truck died. Police found a number of freshly emptied beer bottles in the wreckage.

If our laws had teeth in them would this accident have happened? In Sweden, which takes drastic measures to stop drunken driving (see box on this page) the accident-death rate is now among the lowest in the world—only 4.3 per 100,000 of population. In Canada, the figure is 12.7 deaths per 100,000. Surveys taken in Sweden’s second largest city—Gothenburg—show that after the new law came in traffic accidents, and criminal cases, too, were cut by 27%.

Horse-and-Buggy Laws

MAYBE one of these potential killers lives on your street. He may even be you. You don’t regard him as a criminal, yet he kills five times as many Canadians every year as murderers. He is a social menace six times deadlier than polio.

Dr. Joslyn Rogers, Ontario provincial analyst, who in more than 30 years of medico-legal duties has probably had more experience with drunk drivers than any other Canadian, says: “Drunk

driving has succeeded war as the most wasteful scourge of modern times.”

And drunk drivers grow more numerous. In 1944 our courts convicted 1,155 motorists of drunk driving. Three years later the number had risen to more than 1,800.

Yet, despite the growing carnage, hundreds of potential killers go free or escape with trivial fines every year because of an archaic law which refuses to recognize scientific blood tests for drunkenness and forces police to rely on crude rule-of-thumb evidence as out-of-date as the horse and buggy. Scientific methods are available to prove indisputably whether or not a man is drunk. But Canadian police can only sing off the old phrases, “His breath smelled strongly of liquor, your worship, he staggered and had to be assisted from his car”—and

"The Greatest Menace We Have”

DR. JOSLYN ROGERS. Ontario provincial analyst: "The drunk driver's killings and maimings would appall the public if they could be put before people in all their horror. He is the greatest menace we have.”

INSPECTOR VERNON PAGE, head of Toronto police traffic division: “The drunk driver is more dangerous than a maniac with a gun, for the weapon he wields is virtually an atom bomb on wheels.”

POLICE CHIEF WALTER MULLIGAN, Vancouver: “The traffic problem is the No. 1 problem facing police today. It is more serious than crime. And the drunk driver rates as one of the worst, if not the worst menace in this situation.”

CHIEF CHARLES MACIVER, Winnipeg: “Drunk driving is the No. 1 social problem today. A motorist under the influence of liquor is a potential murderer.”

CHIEF DUNCAN McDOUGALL, Regina: “It is one of the biggest problems of a social nature we have to j contend with.”

CANADIAN TEMPERANCE FEDERATION (in a recent brief to the Federal Government): “Liquor is a

major cause of the alarming increase in highway accidents with its terrible toll of death and major injury.”

CHIEF JUSTICE HOWSON, Alberta: “Hardly a day passes but what I read of a driver’s drunkenness killing innocent people. We cannot permit it to continue.”

Here's lew Sweden: Licked Dronk Driving

IN SWEDEN police have power to stop a lime off cars at any time on any street or highways and take blood-alcohol tests of all drivers. Wherever the alcohol percentage goes above the equivalent of one medium drink of whisky, the driver is sent to jail. The minimum sentence is two months.

If this were Ibw in Canada would you drive after drinking?

humbly hope to get a conviction with this thin story.

Says Chief Walter Mulligan, of Vancouver: “A drunk-driving charge is one of the most difficult to prove.”

As a result hundreds of motorists, obviously drunk, have to be charged with minor offenses like careless or dangerous driving because police know they haven’t strong enough evidence to prove intoxication.

In one Canadian city last year a driver charged with drunkenness fought in the ambulance on the way to hospital, yet he was acquitted because a lawyer proved his actions could have been due to concussion he suffered in the accident.

Another motorist who had an accident was described by police as “very drunk.” He insisted he staggered and couldn’t talk clearly because he was short of breath as a result of an asthma attack. He walked out of the court free.

About 1,800 Canadians die each year in motor accidents. How many of these deaths are due to alcohol? Toronto police traffic division says 15.5%,; National Safety Council, 25%; Dr. Joslyn Rogers, 45%; temperance campaigners, “78% of highway injuries and deaths occur in ‘drink’ accidents”; Chief Robert Weatherup, of New Toronto, “Liquor is the leading factor in 85% of traffic accidents in this area.”

Estimates vary because some include every driver with a whiff of alcohol on his breath while others include only really drunken motorists. Take 30% as a conservative medium and it means that drivers with alcohol under their belts kill 500 to 600 Canadians a year. Many a police chief and highway patrolman will say this estimate is far too low.

TORONTO, August, 1946 — Nine - year - old Richard Hofstetter is playing on the front steps of his home. A car, tires screaming, lurches around a corner, leaps the curb, crashes into the veranda. Richard is killed instantly, his mangled body pinned in the wreckage of steel and wood. The driver disappears, is captured later. He is drunk, the car stolen.

In every large municipality at Christmas and New Year, police are forced to call in reserves to cope with an epidemic of drinking drivers. Across the nation crime investigation grinds to a standstill. ■Police must assume the ironic responsibility of intercepting drunks and confiscating their cars before they kill themselves or others.

Vancouver ushered in the 1949 Christmas season by lining up 25 motorists on drunk-driving charges. Toronto planned to give some constables short Christmas vacations, canceled the plans and called every officer back to duty when drinking drivers flooded out of office parties and night spots.

Inspector Vernon Page, boss of Toronto police traffic division, points out that, “Drunk drivers are a greater menace every year.”

In 1946 Toronto police during the ChristmasNew Year season held 59 cars of drinking drivers. During the same 1949 period they held 152 cars. In In 1945, 453 of the drivers in accidents in Toronto had to be listed either as “under the influence” or “had been drinking.” In 1949 the number jumped to 826. Drunk drivers in Toronto killed two in 1947, seven in 1949.

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Vancouver in 1939 jailed 22 drunk drivers; in 1949, 78. (Chief Mulligan: “The figures knock your eyes out!”) Alberta courts convicted 35 drunk drivers in 1947, 85 in 1948. Regina alone convicted 61 drunk or drinking drivers last year. New Brunswick suspended 238 drivers’ licenses for intoxication in 1946, 270 in 1949.

HESPELER, Ont., October, 1948— A motorcycle accident on a dangerous highway curve. A resident rushes out to aid the injured cyclist, is struck down and killed by a speeding car that does not stop. Police arrest the driver later. “I guess I must have been drunk, I had had seven glasses of beer.”

Why does a normally cautious driver become a hell-raising fool after an evening of drinking? Because alcohol is a narcotic. Forty minutes after the average 150-pound man has taken three ounces of whisky or three bottles of beer his blood will have an alcohol concentration of 0.05%—one part in 2,000. Few persons show signs of drunkenness at this stage, but already reasoning ability begins to slow up, and the drinker’s power of concentration is weakening. After six ounces of whisky or six bottles of beer co-ordination between eye, brain and muscles begins to be affected, producing slurred speech, slowed and inaccurate movements.

Another two or three whiskies or beers jack the blood-alcohol concentration up to 0.15%. Everyone at this stage is drunk according to recognized medical standards. The brain Jobes responsible for balance and sight have been affected even though there may be no outward sign.

But Prohibition Didn’t Work

But the drinking driver begins to lose control of his car long before he looks drunk. It takes him longer to size up an emergency. Even at the preintoxication stage of 0.05% bloodalcohol concentration reasoning speed is cut.10%. At 40 m.p.h. that means he will be eight feet closer to danger than normal before he has figured out what to do to avoid it. A more important factor than reasoning speed—the time it takes to make up your mind— is reaction speed—the time it takes to

The drinking driver who still appears cold sober may have a reaction time 60% slower. He needs 160 feet to stop his car where the nondrinker would do it in 100 feet.

MI N NE DOS A, Man., August, 1948 —Two little girls, one aged 8, one aged 2, wait impatiently as their father drinks wide, beer and rye at a wedding party. They start for home, the father driving his truck. A friend warns: “ You shouldn't drive, someone might get killed.” A cousin offers to drive for him but the father insists on driving himself. The truck overturns in a water-filled ditch. Police find the two-year-old face down, dead, in the crumpled truck box. The second little girl is pinned beneath the wreckage under water, drowned.

A committee of scientists at Evanston, 111., took blood tests from 270 drivers involved in accidents and from 1,750 drivers stopped at random on the road. They found 12% of drivers were

drinking drivers and that this 12% was responsible for 47% of accidents. Here’s the accident-risk score they computed. From 0.05 to 0.07% blood-alcohol concentration the risk is three times normal; 0.07 to 0.15%, seven times normal; above 0.15%, 55 times normal.

As the accident risk increases the driver’s awareness of the havoc he is causing decreases. Last July an Ottawa laborer working on tram tracks was struck by a car, thrown 50 feet, died of a fractured skull. The car raced through a red light, disappeared. Two days later the driver gave himself up. “I was drunk,” he said. “I remember hitting the man, but it never fully dawned on me what had happened until I read it in the papers next day.”

In a small Eastern city last December a drunk driver hit a truck, sliced a pedestrian island in two, drove along a sidewalk for half a block scattering pedestrians, sideswiped a car and a pole, crashed head-on into another car. He backed up, drove his battered car away. Captured later and asked by police why he didn’t stop, he replied, “I didn’t know I hit anything.”

I asked numerous authorities what they felt should be done to reduce the drunk-driving slaughter. The suggestions fall into three categories: 1, Prohibition; 2, Heavier penalties; 3, Chemical tests to make law enforcement more certain.

Sums up Inspector Vernon Page, head of Toronto’s traffic division: “Whatever is done, it should be drastic and it should be done fast.”

Among law enforcement officials, however, I found little support for prohibition as a solution. Typical comment: “We tried it. We drove

drinking underground. But we didn’t stop it. Nor did we stop drunken driving.”

There is a trend in the courts toward heavier penalties for drunk drivers but

opinions differ about the wisdom of this. Drunk driving is a criminal offense under the Criminal Code and the law regarding it is uniform across Canada —everyone convicted must go to jail, seven days to three months. In addition the driver’s license can be canceled for up to three years and, in Ontario, the car is automatically impounded for three months. The usual penalty is seven days in jail, one year’s license suspension, and, for Ontario, impounding of the car.

Windsor and Hamilton magistrates recently warned that drunk drivers would be sentenced to 10 days, and in Fredericton, N.B., Magistrate Walter Limerick invariably locks the drunk driver up for 30 days. Recently two Ontario drunk drivers sentenced to a year in jail for manslaughter (the drunk driver who kills is invariably charged with manslaughter) appealed claiming their sentences were too severe. Appeal Court judges replied, “One year is totally inadequate in such cases as these,” and jacked up the sentences to two years.

The Blood Tells a Story

But stiffer penalties sometimes backfire and weaken the law instead of strengthening it. They encourage accused men to hire lawyers and doctors for their defense, to fight the charge doggedly. With a law as vague as Canada’s this frequently brings acquittal. This, in turn, encourages police to lay lesser charges which they are reasonably sure they can prove.

Newfoundland police have not been able to prove a drunk-driving charge since Canadian law came into force there last December. Under Newfoundland law drunk drivers were merely fined, the accused rarely bothering to offer much defense. Under Canadian law the drunk driver must go to jail for at least seven days. Result: Lawyers fight the cases tooth and nail, often seize on some loophole to get their clients off.

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Inspector Page and others believe certainty of conviction a greater deterrent than stiffer penalties. “Too many drunks get off. It seems nowadays that everyone who staggers and has liquor on his breath isn’t drunk, he just has indigestion.”

The answer, they say, is legalization of blood or breath tests to determine scientifically whether a man is intoxicated.

Some men carry liquor better than others. But the amount of alcohol actually in the blood tells pretty much the same story for all individuals. In 35 U. S. states which use chemical tests the law accepts a concentration of 0.05% or less as proof that a driver is not under the influence. Between 0.05 and 0.15% the courts demand additional evidence on the driver’s actions before convicting. Above 0.15% a driver is drunk no matter what he says or how well he handles himself and conviction is automatic.

How Long to Sober Up?

Blood-alcohol concentration can be determined by a test of the blood, urine, saliva or breath. Breath tests are the most practical. The suspect blows up a balloon which is attached to an apparatus which gives a reading in a few minutes. Police are trained to use the equipment, a doctor isn’t required, and the test can be administered at the scene of the accident.

Acting Superintendent John Dunn, of the Vancouver police traffic department, points out that the lapse of time between an accident and the tests for intoxication now performed in police stations frequently allows a drunk to sober up. “Some sober up very quickly under the realization that they’re facing trouble,” he adds. “If police could slap a breath test on a driver as soon as they nab him—there wouldn’t be this trouble.”

But our police cannot force a suspect to submit to any of these tests because they are not recognized as legal under the Canada Evidence Act. It would take an amendment of the Criminal Code and Canada Evidence Act to make such tests legal here. An accused merely has to challenge blood-test evidence and it cannot be used against him. Result: The tests are practically never used here except on rare occasions when an accused who is confident of his innocence requests one.

YORKTON, Sask., July, 1949—A Regina woman slowed down her car as she saw an approaching car weaving from side to side, but couldn't avoid the crash. Three adults and a baby were pitched out. A young mother regained consciousness, saw her baby lying a few feet away and drew the infant toward

her. The top of the child's head was ripped away, blood and brains smeared the concrete of the highway. The baby had died instantly, the others recovered in hospital.

The R.C.M.P. had a blood test performed on the driver at fault in this Yorkton tragedy; it revealed a high concentration of alcohol. But at his manslaughter trial later the judge said he was forced to ignore this portion of the evidence because there was some suggestion that the accused had not submitted voluntarily to the test. On the strength of other evidence that the driver had been drinking all afternoon and evening in taverns and had been bounced out of one for rowdiness, he was jailed for a year. In this case, opinion evidence was strong enough to convict but the scientific proof had to be ignored.

Deprived of blood testing, our police must rely on old-fashioned intoxication tests such as walking the chalk line, inserting a key in a keyhole, repeating tongue-twisting words, identifying colors and stooping over to pick up objects from the floor. Usually the strongest evidence they can bring against a man is that he staggered, or his breath smelled. Against this, defense lawyers and drunk drivers have assembled an array of excuses that would keep a radio gag writer in business for a year. (Sample, from a New Toronto man whose car was zig-zagging crazily along the highway: “I was taking my dog for a ride. He kept licking my face and climbing into my lap.”)

The crude rule-of-thumb methods by which Canadian police must attempt to prove intoxication are riddled with more doubts than the legend of Atlantis. Concussion, skull fracture, high blood pressure, food poisoning, an overdose of insulin in diabetics can cause symptoms similar to those of alcoholic intoxication. As for breath odor, one glass of beer will accomplish almost as much as 10, and throat antiseptics or lack of insulin in a diabetic will also create breath odors resembling liquor.

A Plea for American Tests

“Many border-line cases who are admittedly dangerous as car drivers have to be overlooked because we could never make the charge stick in court,” Crown Attorney J. W. McFadden, of Toronto, says.

The Criminal Code itself contains no definition of the word “intoxicated” but an annotation quotes a 1939 judgment: “It is regrettable in these cases some other evidence beyond opinions is not available.”

David Archibald, psychologist investigating the alcohol problem for the Liquor Control Board of Ontario, says: “If police could use tests like those accepted throughout most of the U. S., Canada could make some strides in this tragic business of drunk driving.” And Dr. Joslyn Rogers: “Chemical tests get right to the crux of the matter—how much alcohol has the man got in his brain? If his blood has a 0.15'.,' alcohol concentration he’s a lying fool when he says his dizziness was due to indigestion.”

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Detroit police chalked up more than twice as many drunk-driving convictions after chemical tests were introduced. In Washington County, Mich., 62'", of motorists charged with drunk driving used to be convicted; now, by blood testing, 99' get the rap.

Says Inspector Page: “We people in safety work know what has to be done. It is a case of getting the public to know it too so that changes in accord with public opinion can be made.” Meanwhile . . .

TORONTO, November, 1946.—A 31year-o/d driver sideswipes a taxi. The taxi driver gives chase. The hit-and-run car disappears over a hill at 75 m.p.h. Suddenly the night sky is lit up by a red flare—he has collided with another car. Roth autos burst into flame. The driver, face and hands burned black, clothing ablaze, screaming with pain, is dragged out feet-first. His sister, 18, is trapped. Rescuers are helpless. Suddenly her anguished shrieking ends and there is

only the shrill crackle of flame. Her body when finally pulled from the wreckage looks like a big black cigar, identifiable only by the fillings in her teeth. The driver is in hospital several months, is finally jailed two years for manslaughter. Said a medico-legal expert at his trial: “Accused was definitely under the influence of alcohol.”

And last summer . . .

WINNIPEG, July, 1949.—A snaking car skids and crumples under a 50m.p.h. impact with a steel trolley pole. The driver, a young man, pitched from the shattered wreckage, lands in a hedge. His head is crushed, ribs are fractured— a few hours later he dies. A young woman, wedged in the car, is dead. A cop grimaces as he says: “Every bone in her body was broken; she was just blood and pulp.” A half-consumed case of beer was found in the wreckage. Later a coroner's jury declares: “The deaths were due to neglect on the part of the deceased, who we believe was driving while under the influence of liquor.”

These are the horrible pictures that haunt our thoroughfares. And until our laws get really tough, until we treat the drunken driver as a potential murderer, until drivers learn once and for all that gasoline and alcohol don’t mix, horror will continue to stalk the highway. ★