James G. Wigmore, Forensic Toxicologist, Speaker, Author
The Breathalyzer Shock!

As with most legislation aimed at influencing the behavior of road users, a ‘shock’ effect is very often noticeable immediately after the legislation has been introduced and this had been a fairly consistent feature in the case of legislation on alcohol and road traffic. – (Havard, 1975)(1)

Shock was certainly evident when the first Breathalyzer Law in Canada was implemented on December 1st 1969, forty-five years ago today!  The parking lots of suburban beer parlors in Toronto were empty that night and for several nights following its implementation.  Many people were afraid to have even a single drink after work.  Even the bartenders were afraid to drink as they lamented an abrupt decline in liquor sales.  There were outraged letters to the editor and editorials about the “draconian nature of the breathalyzer law” and how it made Canada into a police state.

The law was controversial and revolutionary for its time and consisted of two main features:

  • A mandatory per se blood alcohol concentration (BAC) limit of 0.08 g/100mL (80 mg/100mL) at a time when many US states and other countries had a limit of nearly double that (0.150 g/100L).

  • The BAC would be determined by the Breathalyzer and a driver would be charged with a criminal offence if a breath sample was refused.

Until the Breathalyzer Law was enacted, drinking and driving was a tolerated, if not accepted part of driving and typically was considered no more serious than a speeding ticket.  The earlier Canadian drinking driving laws required obvious intoxication and it was very difficult to obtain convictions.  Hence, they were not enforced effectively by the police as Professor J.K.W. Ferguson of the Department of Pharmacology of the University of Toronto complained in 1955:

“For what they are worth, the figures show that of 1200 drivers involved in fatal accidents, 25 drivers or 2% were intoxicated.  This means that 2% were charged with intoxication.  Intoxication while driving is a very serious offence in Canada.  Convictions are difficult to obtain if charges are contested with skill and determination.  Charges are not laid without great provocation….The driver is innocent in the eyes of the law and presumably self-satisfied as long as he can conceal his impairment or intoxication.  Concealment of intoxication is an ancient and highly developed game of skill.  Do we want it played on our highways?” (2)

A number of previous factors and developments made the Breathalyzer Law in Canada possible:

  • A report by a committee of the Canadian Medical Association recommending a fixed BAC limit and breath alcohol testing in 1962.

  • A resolution passed by the Canadian Bar Association in 1966, which agreed with the CMA report and recommended a per se BAC limit of .08 and breath alcohol testing.

  • The CTV film/documentary POINT ZERO EIGHT which was first broadcast in December 1966 and showed the dramatic impairment of experienced racecar and rally drivers after drinking and then driving around a closed course.  The film became the topic of discussions around water coolers throughout Canada for many days thereafter and raised public awareness of the dangers of drinking and driving.  The film was shown on CTV for many Christmases and I remember seeing it on TV when I was a young teenager.

  • Alcohol Test Committee (initially known as the Special Committee on Breath Testing) of the Canadian Society of Forensic Science, was formed in 1967 as the scientific advisory committee on breath and blood alcohol testing for the Ministry of Justice.  It developed standards and recommendations for proper, scientifically controlled breath testing of drivers.  The Breathalyzer, invented and developed by Bob Borkenstein, was the breath testing instrument initially selected by the ATC for the police.  Hence the common name of the new law (3).

Even so, the Breathalyzer Law met a lot of resistance and challenges in criminal court.  Many lower courts ruled that the new law was invalid.  The Supreme Court of British Columbia also ruled the law invalid.  It wasn’t until a narrow 5-4 decision of the Supreme Court of Canada, with the deciding vote cast by Justice Emmett Hall (the father of Canadian Medicare), that it became the law of the land.

[It is interesting to note that Emmett Hall was a criminal defense lawyer who defended many drinking and driving cases in Saskatchewan before being appointed to the bench]

As usual, the shock did not last long and drinking and driving continued as drivers became aware of the very low risk of getting “caught” by the police back then.  However, the Breathalyzer law, implemented 45 years ago, did set an objective legal standard and acted to educate and transform social behavior and public thinking on drinking and driving.  It is estimated that the Breathalyzer Law helped result in an 18% annual reduction in drinking-driving fatalities over the years and thus create safer roads in Canada (4).

As Doug Lucas concluded:

“Canada is fortunate that its early parliamentarians saw fit to deal with the problem of drinking and driving by means of the CCC (Criminal Code of Canada).  This resulted in the fundamental legislative provisions being uniform across the country.  It also means that the implications for transgressors are very serious, something that drivers may not truly appreciate until they become involved in the process.  Because the consequences for a convicted driver can be so serious it is absolutely essential that the investigative process, including the breath test, be conducted according to the highest standards.” (3)

This blog is excerpted, in part, from an upcoming book by James G. Wigmore and Douglas M. Lucas, “The Breathalyzer Shock, December 1st to 8th 1969:  Who won Turner’s Bet?”

  • Havard, J.D.J., “Cross National Comparisons of Drinking Driving Laws” 6th ICADTS, Toronto,  637-654, 1974

  • Ferguson, J.K.W., “Keynote Address”, Proceedings of the 2nd International Conference on Alcohol and Road Traffic, Toronto, 4-8, 1955

  • Lucas, D.M., “Alcohol and Driving:  The Development of Law Enforcement Countermeasures in Canada”, Canadian Society of Forensic Science Journal, 42: 237-251, 2009

  • Asbridge, M., Mann, R.E., Flam-Zaleman, R., and Soduto, G., “The Criminalization of Impaired Driving in Canada:  Assessing the Deterrent Impact of Canada’s First Per Se Law”, Journal of Studies on Alcohol, 65: 450-459, 2004