Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7514/ADLS/MED
CASE NAME: 7514 v. Registrar of Motor Vehicles
Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Registrar of Motor Vehicles Pursuant to Section 47(1) of that Act - to Appeal a Suspended Licence
Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Dr. D.W. Hurst, Member
APPEARANCES:
For the Applicants: Applicant, Witnesses E.P., P.M., K.S.
For the Respondent: Kyle Biel, Agent Constable M.N., witness
Heard in Niagara Falls July 27, 2012
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal by the Applicant respecting a decision of the Registrar of Motor Vehicles (the "Registrar") pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act").
FACTS
Mr. Biel, Agent for the MTO, gave a brief initial report in which he presented:
- A copy of the Applicant's driving record
- A copy of documents filed with the Ministry of Transportation pursuant to the Highway Traffic Act.
The Applicant's driving record:
1: 11/05/09 failed to report accident 2: 11/10/20 60 km/h in a 50 km/h zone 3: 12/04/20/ 65 km/h in a 50 km/h zone 4: 12/05/07 suspended until August 5, 2012, ADLS suspension.
Current demerit points total 0.
APPLICANT'S CASE
The Applicant described the events of May 7, 2012 on which date her driving privilege was suspended by a Regional Police constable. She was apprehended by the constable after she had apparently hesitated regarding her turn at a stop sign. She described herself as a cautious, careful driver and observed that she has actually been struck at stop signs. The Tribunal was informed that the Applicant had received a call from her boyfriend and he was drunk. She had picked him up in the early morning of May 7, 2012 at a local drinking night spot and on the route home he had caused irritation by playing with the radio which caused some degree of anxiety. On being apprehended by the police she said that he first of all checked her licence and insurance and she claimed that she had not been drinking. It was her observation that the constable appeared stressed and was yelling at her. The constable had asked her to blow into a breathalyzer and she noted that she did not refuse but stated that she was unable to because of her medical problems, asthma, bronchitis and use of medication by puffers as it was a humid evening. At this point the Applicant informed the Tribunal that she carried a doctor's note with her stating that she was unable to use the breathalyser. Mr. Biel interjected by reading a doctor report dated October 27, 2003 which said his patient has asthma and she might have difficulty in breathing at times and which recommended that she use her puffers. The report was signed by Dr. N.T. There was no comment in this report about her ability to use a breathalyser.
The Applicant went on to state that she told the constable that she had not been drinking and this was confirmed by her boyfriend. The policeman noted that she smelled of drink and she said that this odour was coming from her boyfriend. She explained her inability to blow into a breathalyser because of her asthma, chronic bronchitis and an overlying problem with anxiety and/or panic.
On questioning by the Tribunal she stated that with her panic she has a feeling that "she might die". She felt harassed by the policeman who yelled at her and did not demonstrate the use of the breathalyser to her. The Tribunal was informed that he was observing her status and the constable summoned an ambulance with EMS personnel. The Applicant stated that she developed an asthmatic attack caused by the tone of the police officer. She asked for her inhaler which was in her truck and this was retrieved, as she was in hand cuffs. She said he blew the puffer into her face. The Officer then explained that she had three choices:
1: Go to the hospital in the ambulance 2. Go to jail 3. Admit to only one drink and that she could then go
The Applicant said that she was willing to give a blood sample and this could be done by the ambulance personnel but eventually she refused their ministrations and the ambulance left. Her handcuffs were removed and she used her puffer and got relief. She described her cigarette habit as being down to 10 per day. The policeman called a tow truck having suspended her licence to drive for ninety days. He also called for a taxi to take the Applicant and her boyfriend home.
The Applicant then explained that she had asked for this appeal because serious legal matters could ensue given a one year suspension. It was noted in the Applicant's narrative that there was a considerable delay before a taxi came to drive them home.
MR. BIEL'S CROSS EXAMINATION:
Mr. Biel enquired as to the Applicant's health on the fateful evening and she described herself as feeling unwell with a chest cold with symptoms of cough and wheezing and a tightness in her chest on breathing. She used her inhaler and added that she was taking medication for menopausal problems. She described the evening when she and her boyfriend had gone out for dinner, where an argument ensued and she left taking the truck and drove home. Consequently she received a phone call from her boyfriend who was quite drunk. She was feeling very tired with night sweats, poor respirations and difficulty breathing in the stuffy atmosphere of the bar. She went to the bar for a while, refused a free drink from the bar owner and gave it to her boyfriend. She then chatted for some time with the boys in the band. She waited for her boyfriend to finish his drink and left for home. She was asked by Mr. Biel if she attempted to use the breathalyser and she stated that she had explained to the policeman that if she tried it wouldn't work. She denied taking any alcoholic drinks throughout that whole evening. She observed that it is a fact that false positive readings can occur with the breathalyser in a subject who is using inhalers. She explained that she had told the constable that she had a doctor's note regarding her condition which excused her from having to blow into a breathalyser. The doctor had told her to keep this note with her at all times in her car. Mr. Biel stated that she was using this note as an excuse to avoid the breathalyser which the Applicant denied. Mr. Biel observed that the constable had called an ambulance over concern about her panic attack. She then described her technique of "grounding", when she is able to calm herself down and there was some success and it was decided that she did not need the EMS people.
It was recorded that she had been to a regional facility to learn how to handle panic attacks. The Applicant observed that she had visited Dr. N.T. four days later and needed more puffers. She said that there was no discussion about her cold which apparently was resolving.
The Agent then observed that the Applicant had a diploma from the St. John's Ambulance Corp. indicating that she had passed a CPR course and in fact she is certified to do CPR. Questions from the Tribunal disclosed that this involves mouth to mouth resuscitation and the Applicant noted that she can do short puffs of air and has done so during the training course by ventilating a dummy. She said she can't activate a breathalyser.
The Agent then reviewed the fact that pulmonary function tests had been done in 2004 and she got a passing grade. She said that the chemicals in puffers can confuse a breathalyser giving false positives. Mr. Biel's final comment was that if she had attempted to blow into the breathalyser this hearing would be not going on today.
THE APPLICANT'S FIRST WITNESS – MR. A.P.
He described the events of the evening when he had been drinking at the bar and visiting with the band members. No taxi was available and he called the Applicant who arrived about two A.M. He stated that the Applicant turned down a drink which he then consumed. She visited with the band. He described the incident at the stop sign as a three to four second delay before the car was pulled over by constable N. He observed that this constable had harassed them three times in the past six months regarding driving offences including alcohol matters. He noted that the officer had screamed at the Applicant. The witness observed that the officer asked her to step out of the truck and said she had been drinking. She and this witness denied this. The witness described finding his girlfriend's puffer and the accompanying doctor's note in the truck and presented them to the policeman. The witness actually thought the ambulance attendants had taken a blood sample which he thought would have been a "good thing".
MR. BIEL IN CROSS EXAMINATION:
He was concerned about the charge of harassment by the policeman and it transpired that the first event was a DUI for which the Applicant was charged and found guilty. They felt that since then this police officer had been watching them. The witness then admitted that he had been very drunk on that evening. When Mr. Biel then questioned the accuracy of his accusations, the witness stated that he is always more observant when drunk.
THE APPLICANT'S SECOND WITNESS – MR. P.M.
He noted a phone call to their house at one A.M. and he could not leave the house because he was restricted to the house by law. He noted that the Applicant with her boyfriend returned about 5:30 am.
MR. BIEL IN CROSS EXAMINATION:
He observed that this witness was out on bail. Regarding the Applicant's health he said that she had been ill all that week staying at home with symptoms of cough, "fuzziness", but he stated that their air conditioning in the house was not on during that week. It could not be ascertained as to whether the Applicant was in better or worse health on the evening of the dinner out.
The Applicant presented a character reference from K.S. She described knowing the Applicant for many years. "She struggles with panic attacks; she is on medications and noted that the Applicant is a good friend". She receives calls from the Applicant from time to time for assistance with her anxieties. Mr. Biel in cross examination elicited the fact that this witness coaches the Applicant with her panic episodes and also prescribes Yoga and noted that the Applicant's anxiety is sometimes quite overwhelming.
Mr. Biel introduced his witness, Constable M.N. He described his career with the RCMP and with the Regional Police Force.
The witness described being on duty and in full uniform on the evening of May 6th-7th. The 0fficer stated that he noted the Applicant's vehicle parked at the bar and cross referenced the licence plate. He noted an eight to ten second delay at the stop sign and apprehended them. He described the smell of alcohol in their vehicle. He asked for her driver's licence and insurance. He was told that she had not had anything to drink. He said her speech was slurred. When she got out of the truck he noted that she was steady on her feet. Again in the clear air outside of the truck he noted that the Applicant smelled of drink. She denied taking a drink but there is a reference to her having a sip of tequila. He noted the Applicant's statement that she could not breathe into the breathalyser because of her respiratory problems. He described his mention of the breathalyser to her taking the mouth piece first of all, showing how to press the on button and how a long steady breath was required. This instrument was working and was calibrated. The Applicant commented about her doctor's letter saying that she can't do this because of medical problems. The officer asked for this medical letter and it was not forthcoming. The Applicant asked for a lawyer and was told that she could not have a lawyer until she had blown into the breathalyser. This medical letter was then retrieved from her truck. It is dated October 27, 2003 and states that she has asthma and uses a puffer. The officer described reading the Applicant's rights for counsel and got her puffer from the truck and helped her to use it. He took it upon himself to summon an ambulance. He thought that she was faking her panic. He noted that she eventually calmed down and did not want the ambulance services.
The Officer then released her with a ninety day suspension and called a taxi. He then had to go on another call. He observed that the Applicant and her boyfriend were in no danger and that there was a Tim Horton's, two hundred yards away. He did not recall the Applicant asking for a ride home. He was described as having raised his voice to the boyfriend ordering him to get back into the truck and noted that he was not accompanied by a colleague.
Regarding the Applicant's medical problems the officer noted that he had not seen any of these difficulties. He noted that the charge was a failure to supply an air sample and that the Applicant was not charged with impaired driving.
This charge included the fact that the Applicant had been drinking. The officer also confirmed that the Applicant had asked for her puffers.
MR. BIEL'S SUMMARY:
Mr. Biel observed that much of the information provided today by the Applicant was not relevant and lay outside the parameters of this hearing and noting the Applicant did really know why she was here today. He found that there was a credibility problem as to who provided the realistic story, the Applicant, or the police officer? Mr. Biel could find no clear cut reason why the Applicant did not simply attempt the breathalyser in reference to her asthma and respiratory problem, smoking and events sometimes leading to so called panic attacks or an anxiety state.
Mr. Biel observed the comments regarding the Applicant's chest cold in the week interval prior to May 7th but there was no medical confirmation of this and that the Tribunal should reject this statement. He found that there was no medical evidence to indicate that the Applicant should not attempt to use a breathalyser. Mr. Biel noted that the Applicant had not cross examined his witness, (the police officer). He believes that she has chosen not to do so and that on this basis alone her appeal has failed. The Agent turned to his witness's career with the RCMP and the Regional Police Force. He pointed out that this officer had not observed any significant breathing problems on the part of the Applicant. He noted the Applicant's comment that she never saw the breathalyser but that in fact the police officer has testified in detail how he demonstrated this to her. It was noted that the Applicant was asked to comply with the breathalyser test but that she refused and in fact failed to even attempt to use the breathalyser. This mind set indicated that she was avoiding the breathalyser lest she blew over the legal limit. Mr. Biel noted that her description of the panic attack occurred after she had been officially arrested. She had refused the EMS services. She "feared death" but still refused the ministrations of the EMS people. On referring to the medical reports available, Mr. Biel noted that Dr. T and Dr. A. didn't say anything about breathing tests and reported pulmonary function tests were normal in the past. The doctors entered no comment about her ability to exhale. A May 11th medical report done on the advice of her lawyer stated that the Applicant used "puffers". There is no reference to any medical condition that excluded her from blowing into such a machine. Mr. Biel also noted that Dr. A. observed improvements in the Applicant's pulmonary function tests.
Mr. Biel reviewed the prescription pad note retrieved from the Applicant's vehicle with her comment that "I have a report stating that I can't blow or exhale". On review of this note it was found that the doctor only said she had asthma and may have breathing difficulties. Mr. Biel noted that she deliberately chose not to use the breathalyser while in fact she may have been below the legal limit. Mr. Biel also observed that her activities at the night spot during which she chatted with the band and waiting for her boyfriend to finish his drink were not the behaviour of somebody who was significantly ill.
Mr Biel thought it was noteworthy that her new air conditioning system at home had not been used during that critical week. This is not the behaviour of someone who has serious breathing problems.
Again Mr. Biel noted that the Applicant was in possession of a CPR certificate which by definition qualified her to do ventilation including mouth to mouth procedures and wondered how she obtained the certificate if she was restricted in that area. He observed that there was simply nothing wrong with her ability to exhale. Mr. Biel's final comment was about the Applicant's motive. He stated categorically that her prescription pad note kept in her vehicle "that she was unable to blow out" has been used as a "get out of jail free pass" and that it is being used in a manner not intended by her doctor. He also felt that his witness (police officer) gave a clear and concise and expert presentation. The onus is on the Applicant to prove her case and she has not. He asked that the Tribunal confirm the MTO's position.
THE APPLICANT'S SUMMARY:
She emphasized her fear that the breathalyser test can give false positives with some of the puffer medications as they can be alcohol based. She also observed that her panic started far earlier during the apprehension by the police than the officer had stated.
She observed that she was able to pass a CPR diploma test because in ventilation you only use short puffs of breath.
This was the essence of her summary.
ISSUES
Should the decision of the Registrar to suspend the Applicant's licence be confirmed, modified or set aside?
LAW
O. Reg. 340/94, Section 14 states:
(1) An applicant for or a holder of a driver's licence must not,
(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or
(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.
(2) In determining whether an applicant for or a holder of a driver's licence of any class meets the qualifications described in subsection (1), the Minister,
(a) may take into consideration the relevant medical standards for applicants or holders of that class of driver's licence set out in the CCMTA Medical Standards for Drivers; and
(b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,
(i) any reports of examinations under section 15, and
(ii) any additional medical information.
(3) Despite clause (2) (a) and unless otherwise provided in this Regulation, if there is a difference between a medical standard set out in the CCMTA Medical Standards for Drivers and a medical standard set out in this Regulation, the Minister shall take into consideration the standard set out in this Regulation instead of the standard set out in the CCMTA Medical Standards for Drivers.
(4) In this section, the CCMTA Medical Standards for Drivers means the document entitled CCMTA Medical Standards for Drivers, published by the Canadian Council of Motor Transport Administrators and dated March 2009, as it may be amended from time to time, that is available on the Internet through the website of the Canadian Council of Motor Transport Administrators.
Section 47(1) states:
Subject to section 47.1, the Registrar may suspend or cancel,
(b) a driver's licence; …
on the grounds of,
(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;
(e) conviction of the holder for an offence referred to in subsection 210(1) or (2);
(f) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or
(g) any other sufficient reason not referred to in clause (d), (e) or (f).
Section 50 of the Act states:
50 (1) Every person aggrieved by a decision of the Minister made under subsection 32(5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.
(2) The Tribunal may confirm, modify or set aside the decision of the Minister or the Registrar.
APPLICATION OF THE LAW TO FACTS
The Applicant, in documenting that she has chronic respiratory disease with episodes of asthma while continuing to smoke, managed to cope over the years with the help of medications given by a puffer device. On the night of May 6th – 7th in fact she was on call for a job with a local company which apparently involved driving a tow motor. Her boyfriend whose driver's licence is suspended called her about midnight and she was able drive to a local hotel where she spent some time visiting with the musicians then proceeded to drive him home. He was very drunk and caused some agitation in the vehicle. Documenting her respiratory ailments has not produced any evidence to indicate her respiratory problems are severe or that she could not even attempt to blow into a breathalyser device. It is relevant to note that in the week leading up to these events, the air conditioning in her home was not used. It is not medically conceivable for that person able to drive a tow motor, be on call, and drive her vehicle to the local hotel, have a visit while there, would be incapable of blowing into a tube. Anyone with that degree of respiratory difficulty would be carrying an oxygen bottle with nasal tubes or be a patient in a respiratory care unit.
Mr. Biel with the participation of his witness (Police Constable M.N.) has presented evidence stating that she was capable of blowing or at least attempting to blow into a breathalyser and was using an inadequate medical document which she claimed to excuse her from having to do so. It is documented that respiratory function tests were in a satisfactory range (done in the recent past).
The Tribunal does not accept that anxiety would seriously reduce her ability to exhale.
The Agent provided the Tribunal with ample evidence that the Applicant was more than capable of using the breathalyser and used her medical condition as an excuse for not complying with the law.
DECISION
Upon the application by the Applicant to appeal the decision dated May 7, 2012 (ADLS suspension) of the Registrar to suspend her driver's licence pursuant to Section 47(1) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Registrar and of the Applicant;
IT IS THE DECISION OF THE TRIBUNAL pursuant to the authority vested in it under section 50(2) of the Act that the decision of the Registrar be confirmed.
LICENCE APPEAL TRIBUNAL
Dr. David W. Hurst, Presiding Member
RELEASED: August 8, 2012