Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2012-09-20
FILE:
7599/ADLS
CASE NAME:
7599 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 48.3(2) of that Act; - to Appeal a 90-Day Administrative Driver’s Licence Suspension
Licence
Applicant
Applicant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR:
Kevin Flynn
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Kyle M Biel, Agent
Heard in Belleville:
September 18, 2012
DECISION AND REASONS
A hearing was held on September 18, 2012, at Belleville, Ontario, to consider the Applicant's appeal pursuant to section 50.1 of the Highway Traffic Act, R.S.O. 1990, Chap. H.8 ("HTA").
THE TRIBUNAL RULED TO CONFIRM the suspension imposed by the Registrar pursuant to section of the 48.3 of the HTA for the following reasons.
REASONS
The Applicant’s Case
The Applicant, age 25, had spent the evening in the company of her boyfriend in his garage watching television between 10 p.m. and midnight. They ordered pizza and she stated that she consumed one light beer. After she left for home at midnight she was stopped by a police officer for speeding. She was asked if she had been drinking and she told the officer that she had one light beer about forty minutes earlier. She was requested to exit her vehicle and was informed that she would be required to take a breath test for alcohol.
She informed the Tribunal that she attempted to complete the breath test five times, plus once when her tongue blocked the test tube. Before commencing the test, she was instructed to take a deep breath and to blow into the test unit, until a beeper sounded. When asked if she had any medical condition, she stated that she previously had tuberculosis. She also told the officer that she had a fracture of her spine in 2009.
Upon failing to complete the breath test, she was charged and arrested.
On cross examination she stated that she was treated as a child for tuberculosis of her neck lymph glands. There was no lung involvement and no recurrence.
Regarding the back injury, she stated that she lost control of her car in 2009 at a 90 degree turn and crashed into a ditch. She went home and was advised by her father to notify police. She was taken to the local hospital with back pain and was transferred to a university hospital for investigation and treatment. She was in a back brace for three months.
She returned home to continue rehabilitation and returned to work as a part-time server at a restaurant for one to five hours a day and attended a Police Foundation program at a local college. She continued to see her family physician who prescribed narcotic pain relievers until about a year ago.
She stated that she smoked one pack per day until a month ago.
She attended a gym until three months ago and was walking, driving and managing her activities of daily living. She experiences sporadic back pain. She acknowledged that in her work as a server she could carry three plates of food as well as carrying a tray of used plates etc.
Upon receiving the Notice of Suspension and on her decision to appeal she saw her family physician, Dr. H. for completion of the paper work required. She told him about her back pain and told him about sporadic pain on breathing. She acknowledged that she was not referred to a chest specialist or for a pulmonary function test, and was not prescribed puffers.
Dr. H. who has been her family physician for 25 years wrote a letter on her behalf on July 30, 2012.
(Applicant) suffered a spinal back injury with a compression fracture of the T12 vertebra in a motor vehicle accident in August 2009. She has been left with some difficulty with upper spinal and chest movement and these restrictions would present difficulties in completing a breathalyzer test.
No measurements or results of recent tests were provided.
Two witnesses for the Applicant were heard.
Her father stated that when she returned home on the night of the charge, at about 1 a.m. she informed him about the events. He stated that he did not detect a smell of alcohol, that she was coherent and appeared normal. She had walked home.
Her boyfriend confirmed that they had watched television in his garage for about two hours and had consumed an order of pizza and that she had taken one bottle of light beer. She did not appear impaired when she left for home.
The Respondent’s Case
Police Constable Stitt, Belleville Police Service, was on traffic duty on July 24 operating a radar unit. He clocked the Applicant’s car at 70 k/hr in a 50 k/hr zone at 23:41 hrs. He stopped the vehicle one minute later and asked the driver if she had taken a drink. She stated that she had taken one light beer about forty minutes earlier.
He informed her that he detected an odour of alcohol and he made a demand for a breath sample. She agreed to take the test.
He instructed her on how to perform the test on the Intoxolyzer. He demonstrated that she had to blow steadily into the test tube until she heard a snap. He demonstrated to the Tribunal that the unit requires a total of 1.2 litres of air expelled. The unit reads one bar for each one third of that amount, three bars in total when a snap is heard.
On test #1 no bar appeared. On test #2, a minor amount of air with one bar. This test was obstructed by her tongue. On test #3, no bar appeared.
He then changed the tube and again instructed her and repeated that failure to provide the required sample would amount to a refusal and a charge. He asked if she had a medical condition. She told him that she had TB as a child and she was becoming agitated. She told him that her brother was a police officer and that she was taking the Police Foundation course.
On test #4, there was a minor amount of air and one bar. On test #5, there was a minor amount of air and one bar. On test #6, there was a minor amount of air and one bar.
A new test tube was then inserted. She then stated “you are scaring me” and that she wished to call her brother and walked away. He issued the arrest under section 48.3 and section 48.4 of the Highway Traffic Act for refusal to provide a breath sample on demand. She said “Why would I be arrested after one beer?
He informed the Tribunal that during the test she did not complain of back pain and was not short of breath. She did not appear to be in pain. She did not ask for medical examination. She told him about the back injury following the arrest.
On cross examination by the Applicant, the officer stated that she informed him of the history of tuberculosis after the third test
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
LAW
The legislation governing the Administrative Driver’s Licence Suspension (“ADLS”) under subsection 50.1(1) and (2) of the Act states:
50.1 (1) A person whose driver’s licence is suspended under section 48.3 may appeal the suspension to the Tribunal.
(2) The grounds on which a person may appeal under subsection (1) and the only grounds on which the Tribunal may order that the suspension be set aside are,
(a) that the person whose licence was suspended is not the same individual to whom a demand for a sample of breath or blood was made, or from whom a sample of breath or blood was taken, as the case may be, under or pursuant to the provisions of the Criminal Code (Canada) referred to in subsection 48.3(3); or
(b) that the person failed or refused to comply with a demand made under section 254 of the Criminal Code (Canada) to provide a sample of breath or blood because he or she was unable to do so for a medical reason.
Pursuant to section 50.1(4) of the Act, the Tribunal may confirm the suspension or may order that the suspension be set aside.
Regulation 574, R.R.O. 1990, to the Act at subsections 15 (1), (2) and (3) require that a medical report must contain:
- (1) a report of a legally qualified medical practitioner that is to be submitted in evidence shall clearly state,
(a) the name, telephone number and address, with the postal code, of the medical practitioner;
(b) the name, date of birth and address of the person who is the subject of the report;
(c) that the medical practitioner has prepared the report, or is aware that the report may be used, in support of an appeal to the [Tribunal] from the suspension of a driver’s licence under section 50.1 of the Act;
(d) the length of time and frequency with which the medical practitioner has attended upon the person who is the subject of the report, including the date of the most recent examination of the person that supports the findings set out in the report;
(e) whether the medical practitioner is the family physician of the person who is the subject of the report; and
(f) whether the medical practitioner is a specialist and, if so, the field of speciality.
(2) The report shall provide the details of any present condition, diagnosis and history of the condition that precludes the person who is the subject of the report from providing a breath or blood sample including the results of any related tests.
(3) The report shall be signed by the medical practitioner.
Finally, Section 13 of Regulation 574 provides that:
A person appealing a suspension has the onus of establishing the merit of the appeal.
APPLICATION OF THE LAW TO FACTS
SUBMISSIONS
The Respondent relies on the following:
No evidence was presented that the back injury of three years ago has any effect on the Applicant’s ability to provide a breath sample on demand.
The history of tuberculosis as a child is not relevant.
The police evidence is clear and cogent and consistent with refusal to provide a breath sample on demand. He was justified in making a demand on the basis of her admission of alcohol consumption and the odour of alcohol from the Applicant.
The officer was in close proximity to the Applicant throughout the event leading to the arrest and he did not detect pain, discomfort or shortness of breath.
Six opportunities were offered to the Applicant to provide the breath sample with failure each time.
There was no request by the Applicant for medical help.
The physician did not provide evidence on how the Applicant’s history of back injury affected her ability to perform the breath test. He did not provide results of a pulmonary function test, chest XRay report, or chest specialist report. No inhalers were prescribed.
The Applicant was able to carry out her function as a part-time server in a restaurant without breathing difficulty.
The Applicant has the onus of proving that there was a medical reason for her failure to provide a breath sample.
The Tribunal concurs with the submissions by the Respondent based on evidence heard.
There was no submission by the Applicant.
The Tribunal finds that the Applicant has failed to provide proof that she suffered from a medical condition that precluded her compliance with a just demand by a police officer for a breath sample made under Section 48.3(b) of the Highway Traffic Act.
DECISION
Upon the application by the Applicant to appeal the decision dated July 25, 2012 of the Registrar to suspend her driver’s licence pursuant to Section 48.3(b) 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
KEVIN FLYNN, Presiding Member
RELEASED: September 20, 2012