Tonight we drink, tomorrow we ride
Now that we are through the looking glass, and many people rely on their bicycles as their primary or sole means of transportation, many questions arise as to what the cyclist can do and not do within the confines of the law. We know from the Criminal Code that one commits an offence if one:
operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not:
(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or drugs;
or
(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds 18 milligrams of alcohol in 100 millilitres of blood.
If you are accustomed to riding your bicycle drunk, you will be pleased to see no reference in the foregoing provision of the Criminal Code to cyclists or bicycles of any variety. Before you pull the cork and celebrate, there are a number of reasons why drinking and riding will land a cyclist in hot legal water. Obviously, any activity that carries risk and requires a reasonable reaction time is best carried out sober. Beyond this simple piece of common sense, it is also noteworthy that cycling under the influence carries a number of legal consequences.
First, there is the catch?all provision in the Criminal Code called “criminal negligence.” Criminal negligence is defined in the Criminal Code as being associated with “doing anything” or “omitting to do anything” that it is one’s duty to do, if while acting or omitting to act one shows “reckless disregard for the lives or safety of other persons.” Riding recklessly through a crosswalk while impaired would obviously invite the application of this section in the event of a serious injury to another person.
More commonly, and more germane to my experience, is consideration of impairment as a factor in contributory negligence in cases involving serious injuries to cyclists when involved in collisions with motor vehicles.
A very recent B.C. Supreme Court case involved an impaired cyclist. Jamie Potts, a 19-year-old plaintiff, said he consumed a 40-ounce bottle of beer with an alcohol content of 8.5 per cent on an essentially empty stomach around noon on the day of the accident. He said he ate nothing and drank nothing further that day before the collision, which occurred at approximately 9:30 pm. An expert in blood alcohol analysis came to a different conclusion based on her review of his blood alcohol content. She testified he would have had to consume 13.88 glasses of beer at 5 per cent alcohol to reach his level by 9:40 pm. She gave further evidence that he was too impaired to operate a bicycle at the time of the collision.
Her report stated:
“This individual does not possess the proper judgment, reaction time, balance, co?ordination, vision, comprehension, or fine motor control to attempt to safely bicycle across a busy street.”
In particular, she testified that vision is one of the first senses to be affected by alcohol, and that alcohol impairs one’s ability to recover from glare such as oncoming headlights or bright street light. The expert also gave opinion evidence that alcohol reduces distance judgment, speed judgment, depth perception, and the ability to perceive danger.
The facts of the accident were relatively simple. The cyclist was crossing the street outside of a crosswalk in Langley. He alleged the defendant had time to avoid him and should have seen him prior to the accident. The defendant alleged that the plaintiff entered the roadway
from behind a parked van suddenly and at a high speed, and that there was no time to react.
After hearing a large volume of evidence from numerous witnesses, including independent eyewitnesses, the plaintiff and defendant, reconstruction experts, and alcohol experts, the court rendered its decision. The court noted that despite the fact that the cyclist was essentially “jaywalking” across the street in circumstances where he did not have the right of way in respect to ongoing traffic, the motorist still had an obligation to avoid a collision. Both the cyclist and motorist had respective duties, and each needed to prove that the other was in breach of his duty.
The cyclist’s speed became characterized as a “crucial fact” in the assessment of whether or not the defendant reacted reasonably to the presence of the cyclist in the roadway. Unfortunately for the cyclist, because he was found to be impaired by alcohol, anything he told the court or anything he told his reconstruction expert in relation to his own speed was found to be not entirely reliable. The judge stated that, “the credibility of the plaintiff’s evidence must be carefully assessed in light of his obvious state of impairment.”
Ultimately, the plaintiff’s impairment had a domino effect. The judge found that given his significant impairment by alcohol it was unlikely the plaintiff checked for traffic before crossing the street, and that he traversed the roadway in a diagonal manner thereby “increasing the chances of being hit.” The judge made a further finding that owing to his impairment, the plaintiff would lack the ability to judge his distance from the defendant in the critical moment when he began crossing the street. Nor would he have had the ability to assess the defendant’s speed properly.
In the end, the motorist was found 20 per cent liable and the cyclist was found 80 per cent liable. The judgment is replete with references to the impact of alcohol on a cyclist’s ability to ride. Certainly, without the involvement of alcohol the accident might not have happened. Perhaps that is speculative, but beyond the actual occurrence of the accident, it is obvious from the reasons for judgment that the cyclist was not on a level legal playing field as a result of his impairment.
----------
