Should pedestrians be breathalyzed?
Draft legislation sent to parliament would see passersby subject to drink and drugs tests
In early October, Interior Minister Jorge Fernández Díaz introduced a bill to reform existing traffic laws. The draft legislation, which is now making its way through the Spanish parliament, will require pedestrians caught breaking traffic regulations to be subjected to on-the-spot alcohol and drug testing, just as drivers involved in accidents or infractions are.
This would be enforceable whether the pedestrian is involved in an accident or not. In other words, simple things like crossing the road at the wrong spot could prompt police checks.
While all indications suggest that the consequences for the violator would be dealt with under administrative terms rather than being penal in nature, the changes still represent a quantum leap in the way pedestrians are viewed by the law. Essentially, the reform equates the risk posed by a pedestrian under the effects of drugs or alcohol to the danger created by a driver in the same conditions.
The announcement sparked an angry debate on the micro-blogging site Twitter, where hundreds of users criticized the government for what they described as an unjustifiable intrusion into people's private lives - chiefly to collect more money from citizens.
The reform equates the risk posed by a pedestrian to the danger of a driver
So is the measure proportional? Does the state really have the right to have jaywalking pedestrians stopped by police and forced to blow into a breathalyzer?
Absolutely not, says Pablo Barco, the technical coordinator of La red de ciudades que caminan (or, The network of walking cities), an organization that supports initiatives to encourage city-goers to get around on foot. Barco says that this is tantamount to "criminalizing pedestrians," when they in fact "normally tend to be the victims."
According to a report by the Mapfre Foundation, from 2005 to 2010 a total of 3,327 pedestrians died in traffic accidents in Spain, while another 13,371 - half of whom were children and seniors - were seriously injured. A further 51,000 sustained minor injuries. Since 2006, when Spain's points-based driver's license went into effect, the annual pedestrian death rate has dropped by more than 60 percent (from 613 to 376).
Despite this objective improvement, the figures and their underlying causes remain a matter for concern. The Mapfre report explains that nearly half of pedestrians who were killed or seriously injured were jaywalking. The rest break down into people who were repairing their car when they were hit; those who were getting in or out of their vehicles; those who were on the sidewalk; and those who were in the middle of the road.
Nearly half of pedestrians who were killed or injured were jaywalking
Current legislation establishes that in the event of a fatal accident involving a pedestrian, the fault lies with the driver, unless it can be proven that the pedestrian incurred in grossly reckless behavior.
"You need to keep in mind that 20 percent of all those killed in road accidents are pedestrians, and before passing judgment on the new bill we cannot forget that 30 percent of these pedestrians were under the influence of alcohol," says Julio Laria, director general of Mapfre's Institute for Road Safety. What's more, 17 percent of pedestrians killed had consumed illegal substances. "Considering this data, it is obvious that something needs to be done," he adds.
But that something is not what the government has in mind, says María Martín, a professor of criminal law at Madrid's Complutense University.
"What struck me the most about this measure is its apparent lack of usefulness," she notes, explaining that alcohol consumption is irrelevant when it comes to establishing what kind of violation was committed by the pedestrian or what administrative sanction it entails. "Drunken walking or running is not penalized, nor is it an attenuating or an aggravating circumstance, so I don't see the sense in [drug and alcohol testing] for someone who breaks a rule."
The new road rules
- Fines for driving under the influence go up by 500 to 1,000 euros.
- In the case of drug use, the fines will not just be for their "influence" on driving, but also for their "mere presence."
- According to the interior minister, of all road deaths in 2012, 47.3 percent tested positive for alcohol, illegal drugs or psychotropic drugs.
- The top speed limit will be raised to 130km/h.
- On roads with a 60km/h limit, driving points will be lost when drivers exceed the limit by 30km/h or more.
- Cyclists under the age of 18 will have to wear helmets in city limits. This measure may be applied to other bike users in the future.
Spain's DGT road safety authority, which answers to the Interior Ministry, admits that there are still many legal loopholes to fill. "Nothing has been finalized," said a spokeswoman, although if Minister Fernández Díaz's forecasts are right, the bill will pass in the spring.
In the meantime, nobody knows what kind of sanction will be imposed on violators or for how much money. Nor is anything being said about the consequences for people who refuse to undergo the testing. Also still to be determined is whether the threshold for blood alcohol content for pedestrians will be the same as for drivers (0.05 percent, or 0.25 milligrams per liter). And it is not even clear whether committing a traffic violation while under the influence will be an aggravating circumstance or not.
Miguel Ángel Preso, a professor of constitutional law at Oviedo University, believes that the way the penal code currently stands, finding out whether a pedestrian has consumed drugs or alcohol would only serve to relieve them of responsibility in the event of a traffic violation. And yet "it does not seem like the purpose of the reform bill is for drug and alcohol screening to let people get off the hook without a fine."
Instead, he believes that the purpose is to extend penal procedure investigation methods to the administrative realm, with the ensuing "effect on rights."
Drunken walking is not penalized, nor is it an aggravating circumstance"
But none of these considerations are dealt with in the short text that the executive sent Congress.
Despite the lack of definition, Mapfre's Julio Laria has praised the government's intentions, which he feels are nothing other than stopping the constant trickle of dead and injured pedestrians. Even so, he also admits that implementing the measure will create its own set of problems, which will often end up in the courts.
But Laria rejects the notion that pedestrians are being criminalized, as claimed by many associations and Twitter users.
Testing passersby for certain substances could make sense "in a few specific cases" but never as a general rule, adds César Aguado Renedo, a professor of constitutional law at Madrid's Autónoma University. For instance, he says, police could justifiably screen a pedestrian who ran out into a highway during peak traffic hours, creating a dangerous situation for himself and others; but this would make no sense for a person who crosses a deserted road in the middle of the night without going over the designated crosswalk. And yet, technically, both are committing a traffic violation.
These tests are a violation of one's physical integrity, even if only slightly"
"One would presume that the point of finding out the driver's and the pedestrian's state [of intoxication] at the time of a traffic violation is to attest to the greater overall risk that is entailed by it," says Aguado.
But he thinks that equating the risk potential of pedestrians and drivers is not acceptable. "The risk generated by the driver cannot be equated as a general rule to the risk triggered by the pedestrian, since the latter's influence on the accident he or she may cause will be proportionately much lower than that of a driver in his or her vehicle."
In order to subject a pedestrian to this screening, he thinks that the material or personal danger has to be "objectively confirmable." Otherwise, it would be a violation of privacy rights.
According to a Constitutional Court decision dating back to 1999, the right to privacy is "a right to secrecy, to being unknown to others, for others not to know who we are or what we do, and preventing third parties, whether individuals or public powers, from deciding the limits of our private life; each person may reserve a space that is protected from the curiosity of others, regardless of what is contained within that space."
This interpretation, says Aguado, implies that if no serious risk is posed, then regardless of whether a traffic violation has been committed, "police officers should not have the legal possibility of compelling citizens on foot to reveal whether they drank (and how much) or consumed psychotropic substances (in smaller or larger quantities)."
Elviro Aranda, a former Socialist deputy and a professor of constitutional law at Carlos III University, explains that drivers can legally be screened because it is justified by the risk potential of driving under the influence. But this kind of threat evaporates when the offender is on foot. "It is very difficult to justify screening a pedestrian for drugs or alcohol unless they've been involved in an accident. Ultimately, those tests are a violation of one's physical integrity, even if only slightly."
Not even victims of road accidents seem very sure about this initiative. Ana Novella, the spokesperson for an association called Stop Accidentes, considers it "slightly disproportionate," although she does agree that there should be large fines for offending pedestrians "because there are dangerous situations and potential accidents caused by their conduct."
Professor Aranda introduces another element of doubt. The bill refers to pedestrians who commit "a violation." Since this statement is part of a traffic reform bill, it is assumed that we are talking about a traffic violation. But the lack of definition could pave the way for other interpretations.
"The way it is currently drafted, it is very confusing and there is a danger that it could be used as a measure of repression against things like the botellón [group binge drinking in public spaces] or against excessive noise levels. Surpassing noise levels as set out in city bylaws is also an administrative violation. Who can say that a pedestrian who screams too loud on the street will not be screened for alcohol?"
A roundabout way of planning
Francisco Toscano, the Socialist mayor of Dos Hermanas since 1983, blames the Tour de France television coverage. Bonifacio de Santiago, mayor of Las Rozas between 1995 and 2011, points the finger of blame at Place de L'Étoile in Paris. Both leaders, in separate telephone conversations, reminisced how, early on in their terms of office, they were "in awe" at the "elegance and fluidity" with which French traffic circles absorbed large amounts of vehicles with no need for traffic lights.
They also remember how, faced with significant urban growth in their own municipalities between 1990 and 2000, they decided on a circular solution for their own streets and intersections. Today, Dos Hermanas (Seville) - which boasts more than 100 roundabouts - and Las Rozas (Madrid) - which touts itself as the only town of over 50,000 residents without any traffic lights - stand out in a country where traffic circles have popped up like mushrooms.
There are enormous ones like the roundabout in Sanchinarro (Madrid), whose diameter spans 200 meters. There are minuscule ones like that in Alhendín (Granada), where 14 local politicians stood packed tight recently to make sure they would appear in the press reports about its inauguration.
There are empty ones, such as the traffic circle on Madrid's Avenida de la Ilustración, which is regulated by 19 traffic lights. There are elaborate ones, like the roundabout in Arroyo de La Encomienda (Valladolid), which sports 800 signs bearing the word "Hello" in as many languages. In certain neighborhoods, the roundabout craze has been taken to such lengths that there is one at each and every intersection, explains urban planner José María Ezquiaga.
"Roundabouts are a useful tool to regulate traffic at intersections. They are a basic solution. But they are not the only one. There are large thoroughfares, such as the Castellana, which are regulated by lights and work just as well or better. Roundabouts are suitable when they adapt in size and design to the intensity of the traffic they absorb. Lots of macro and micro-roundabouts create more problems than they solve. There has been a lot of abuse. It was a fad. They felt modern, and there's been something of a craze by politicians and professionals to bring roundabouts into their villages," he adds.
José Seguí, winner of the National City Planning Award, is more graphic: "A roundabout is like a traffic light or a curb: a resource, not a monument. Many have distorted their own function and they block the driver's vision by serving as a display window for the megalomaniac tendencies of some politicians. It's like dressing up a traffic light in a flamenco dress."
An old Air Force F-18, manned by two dummies dressed in fatigues, adorns the roundabout in Berciales, Getafe, a city that is full of traffic circles. But it still does not beat nearby Leganés, whose roundabouts occupy a place of honor on websites about ineffable traffic circles. The plane was a present from the Defense Ministry, but during the bonanza years, some mayors splurged on roundabout decorations by artists they personally favored.
"An empty roundabout is ugly," argues the mayor of Dos Hermanas, whose roundabouts mostly feature plants, yet he admits to spending 20,000 euros on a sculpture of "two civil guards and a German shepherd" that graces the roundabout near the Civil Guard headquarters.
But even that pales in comparison to the 300,000 euros spent on a sculpture by an artist called Ripollés, who found inspiration for his work in the provincial chief Carlos Fabra. This work of art presides the Castellón airport, which, despite being officially opened in 2011, is yet to see any commercial air traffic.
"The roundabout inflation ran parallel to the real estate bubble, which favored cars instead of pedestrians," says Carlos Hernández-Pezzi, a city planner and independent councilor for Málaga. "We need to rethink everything. Roundabouts have no other urban function; if anything, they serve to trivialize the art they hold. They are the absolute non-place."
But roundabouts have some major points in their favor, notes Carlos Lahoz, head of urban planning at the Madrid Architect Association. "They slow traffic down, they are a reference point, they improve urban legibility and most of them actually work," he explains. On the other hand, they use up hectares of land at the best intersections," he admits.
"There are two problems," he continues. "One is legal: they are part of the road and cannot be built on. The other one is technical: how do you reach them?"
In the meantime, some people are taking a proactive approach to the problem: on a recent weekend, a family was spotted having a picnic in the middle of a round patch of grass, surrounded by cars and cement in the suburban area of Alicante.