7899 v. Registrar of Motor Vehicles, 2013 CanLII 11909

Licence Appeal Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2013-03-11

FILE: 7899/ADLS

CASE NAME: 7899 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 Impose a 90-Day Administrative Driver’s Licence Suspension

Applicant Applicant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: D. Ian Turnbull, MD Presiding Member

APPEARANCES:

For the Applicant: Self represented

For the Respondent: Kyle M. Biel

Heard in Toronto: February 28, 2013

REASONS FOR DECISION

A hearing was held on February 28, 2013 at Toronto, Ontario, to consider the Applicant's appeal pursuant to section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA").

The Tribunal released its Decision on March 1, 2013, with Reasons to follow.

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

BACKGROUND

The Applicant appealed by way of a Notice of Appeal (Exhibit 2) under section 50.1 of the HTA. The Applicant appeals from the order of the Registrar of Motor Vehicles (the "Registrar") dated January 24, 2013 (Exhibit 1).

Reason for the Appeal

The Applicant states he refused to provide a breath sample for a police officer because of a medical reason.

Preliminary Matters

At the onset of the hearing, the Tribunal ordered that witnesses, except for the parties, be excluded during the testimony of other witnesses. The witnesses were cautioned not to discuss their evidence with the parties or other witnesses during the period of exclusion of witnesses.

ISSUE

Did the Applicant fail or refuse to comply with a demand to supply a breath sample because he was unable to do so for a medical reason?

LAW

The legislation governing the Administrative Drivers Licence Suspension (ADLS) under subsection 50.1(1) and (2) of the HTA 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 was made, or from whom a sample was taken, or who performed physical co-ordination tests or submitted to an evaluation, as the case may be, under section 254 or 256 of the Criminal Code (Canada); or

(b) that the person failed or refused to comply with a demand made under section 254 of the Criminal Code (Canada) because he or she was unable to do so for a medical reason”.

The HTA states under Section 50.1(4):

The [Tribunal] may confirm the suspension or may order that the suspension be set aside.

Rule 15.3(b) and (c) of the Tribunal's Rules of Practice states:

15.3 In addition to the provisions of Rule 15.2, the following Rules apply to appeals pursuant to Section 50.1 of the Act:

(b) A report of a legally qualified medical practitioner that is to be submitted in evidence shall clearly state,

(i) the name, telephone number and address, with the postal code, of the medical practitioner;

(ii) the name, date of birth and address of the person who is the subject of the report;

(iii) 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;

(iv) 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;

(v) whether the medical practitioner is the family physician of the person who is the subject of the report; and

(vi) whether the medical practitioner is a specialist and, if so, the field of specialty.

(c) The report referred to in subrule (b) shall

(i) 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, and

(ii) be signed by the medical practitioner.

Finally, Rule 15.3(a) the Tribunal's Rules of Practice states of states:

(a) The Applicant has the onus of establishing the merit of the appeal.

EVIDENCE OF THE APPLICANT

The 33-year-old Applicant works for his father. He finished a job between 9:30 - 10:00 pm and drove home in his work van. He and his family live in the basement of his parent's home.

He states that between 10:00 - 11:00 pm he was assaulted while getting out of the parked van in the driveway. He states there were "four guys" in a car. He believes he was struck in the head by either a piece of pipe or a crowbar and sustained a scalp laceration which bled profusely. He says he was "groggy, fearful, confused and disoriented."

He got back into his van (which had been reversed into the driveway) and tried to get away and "t-boned" a Honda at the end of the driveway which ended up on the lawn. His van stuck in a snowbank.

He then tried to get into the house, but his father wouldn't let him inside. His father sustained minor facial injuries which were assessed at a local hospital. A police officer arrived, and after a verbal order, the officer told the Applicant he was under arrest and hand-cuffed him.

The Applicant's mother then intervened and separated the two men who were wrestling on the lawn. The Applicant says he felt that "he could move a house." Police back-up arrived in minutes. The Applicant then went by ambulance to a local hospital for assessment, stapling of his scalp laceration and a breathalyzer test. The arresting officer followed in the police vehicle..

The Applicant states "I don't remember anybody asking me nothing." He has no recollection of a demand for a breath sample.

In cross-examination, the Respondent’s agent asked if the Applicant stopped anywhere after finishing the last job. The Applicant denied stopping at a named bar. He specifically denied having had three Heineken beers.

The Applicant acknowledged that he was able to come up with the name of his lawyer. Attempts to contact his lawyer were futile and duty counsel eventually phoned back.

After the Applicant had spoken to the duty lawyer, he said "I refuse to provide a breath sample" followed by, "I spoke to your lawyer, now I want to speak to my lawyer," and insisted the charges were going to be dropped.

The Applicant has no recollection of refusing a nurse's request to provide a blood sample ordered by an Emergency Room (ER) physician.

The Applicant attached his family doctor's medical report to the Notice of Appeal (Exhibit 2). His physician states, "patient with an apparent recent trauma to the scalp and incidental mass in the brain could easily render patient to be somewhat confused, stuporous and unable to take a breathalyzer test."

His physician is referring to a computerized axial tomography (CAT) scan done on the Applicant’s head on January 24, 2013, showing a 5.5 x 4.8 cm fluid density mass occupying most of the middle cranial fossa, in keeping with an arachnoid cyst.

EVIDENCE OF THE RESPONDENT

The police officer who attended at the Applicant’s home responded to a 2:29 am dispatch. A "911" call complained of a car which had driven over their lawn and almost hit their parked car in the street. The suggestion was "impaired driver." This was followed by a 2:32 am dispatch, "intoxicated male trying to break into a house."

The Applicant told the officer "guys with guns were chasing him." The officer observed the Applicant stumbling and, in his opinion, he appeared intoxicated.

The officer told the Applicant he was under arrest, and they fell on the lawn where the Applicant was handcuffed.

The Applicant was aggressive, yelling and shouting profanities including, "I'm going to have your jobs." The officer read the Applicant his rights, including his right to counsel.

Paramedics were then called; an ambulance took the Applicant to a local hospital for assessment.

Arriving at the hospital at 3:12 am, the Applicant was doubly handcuffed to a bed because he was still belligerent, swearing and yelling, extremely vulgar, even swearing at hospital staff.

He was able to provide the breathalyzer officer with his wallet and driver's licence.

This officer had received a 2:30 am call about an "impaired driver" and a subsequent 2:33 am call about “an intoxicated male trying to break into a house.”

When he met the Applicant, he was agitated and "not in a good mood." The breathalyser officer stated the Applicant had "the strong smell of alcohol on his breath." The Applicant claimed he was chased by guys with guns (and said a shot had been fired), and didn't know why.

The breathalyzer officer has been administering breathalyzer tests since 1994. He asked the Applicant if he understood the consequences of refusing to provide a breath sample, and the Applicant said "yes."

The Applicant also said he was "OK" with the criminal charges and loss of his driver's licence. The officer asked the Applicant if there was anything he could do to make it possible for the Applicant to provide a breath sample, and the Applicant said "no."

In cross-examination by the Applicant, the police said they had searched his van in the driveway; there were no drugs or alcohol, knives or guns. The Applicant stated, "I don't remember much of that night."

The Applicant told the breathalyzer officer he had three beers at one club, had a washroom break at a second club and was followed home by a car. The Applicant told the officer "he wasn't going to blow into anything," "didn't have to," and "I don't care," and "I don't care about the law."

He was charged at 5:36 am with the offence of refusal to provide a breath sample. When the Applicant was told he would lose his licence automatically for 90 days, he responded, "that's fine." The officer believed the Applicant was well aware of the situation and understood the process.

The Applicant made no attempt to put the breathalyzer tube in his mouth, and in the opinion of the officer made a conscious decision not to blow into the tube and provide a blood sample.

APPLICANT'S SUBMISSIONS

He has no record of alcohol-related driving incidents. He needs his licence to earn money to support his family and states that he was not drinking that night.

RESPONDENT'S SUBMISSIONS

The Applicant did sustain a scalp laceration, which did bleed profusely; the causation is unknown. A CAT scan of the Applicant’s head at the hospital did show a possible arachnoid cyst.

The Registrar maintains the Applicant, despite his bleeding scalp laceration, was rational at the hospital; he was able to name his lawyer. Furthermore, the experienced police officer who briefed the Applicant about the breathalyzer believed the Applicant fully understood the consequences of his refusal to provide a breath sample. The Applicant has not offered any evidence to contradict the detailed police evidence.

APPLICATION OF THE LAW TO FACTS

The onus is on the Applicant to prove that a medical condition prevented him from providing a breath sample for the breathalyzer.

The Tribunal finds the Applicant did not suffer from a medical condition at the time of the breathalyzer request that would have prevented him from providing a breath sample.

The Tribunal finds the Applicant made a conscious decision not to provide a breath sample .The Applicant was rational when he provided the police with the name of his lawyer at the hospital about 3:12 am.

The police officer who was to administer the breathalyzer test has 19 years' experience and is a trained observer in evaluating the current mind state of the subject to be tested. The same officer detailed what the test requires, informed the Applicant of hi rights and the consequences of the results of the test, including a refusal to provide a breath sample.

In opinion of the officer, the Applicant knew exactly what he was doing and made a conscious decision to refuse to use the breath tube to provide a sample. Even when the officer continued to explain the short and long-term ramifications of a decision to refuse to provide a sample, the Applicant made another conscious decision to refuse … “I refuse.”

The Applicant repeatedly insists that he has no memory of the events, "I must have been unconscious or something." Both police officers say the Applicant never lost consciousness.

There are some inconsistencies in the Applicant's testimony. The breathalyzer officer says the Applicant told him he had been drinking after work, yet the Applicant is adamant he neither said that nor had a drink. The Applicant's possible state of intoxication is not, however, the issue before the Tribunal.

The Applicant states there were “four guys” in the car following him; the attending officer says there were two. The cause of the Applicant’s scalp laceration is not clear.

There is a multi-hour discrepancy between the time the Applicant says the confrontation occurred at his (parent's) house and the police log.

The Applicant's recollection of the events of January 24, 2013, are confusing to say the least, involving being followed by four guys in a car, being hit on the head by a pipe or crowbar, the possibility of knives, guns and even a gunshot. His story changes and when pressed for details falls back on "I must have been unconscious or something; I had nine staples in my scalp which was bleeding like crazy."

The two men in the Honda that followed him to his house were, in fact, according to the police evidence, the same persons that called “911” regarding “an impaired driver” – driving over their lawn.

The Applicant’s physician's medical report (Exhibit 2) states, "Patient with apparent recent trauma to scalp and incidental mass in brain could easily render patient to be somewhat confused, stuporous and unable to take a breathalyzer test."

But according to the sworn testimony of an experienced breathalyzer officer, present at the time of the incident,, the Applicant was neither stuporous nor confused when a demand was made for a breath sample and, to the contrary, was well aware of what was going on. The officer said the Applicant fully understood the process and made a conscious decision to refuse to provide a breath sample.

The CAT scan done January 24, 2013, showed a cystic lesion in the midbrain, possibly an arachnoid cyst and a neurosurgical consultation was arranged. This is an unexpected finding, but the Tribunal is not convinced, on the evidence before it that this finding would have prevented the Applicant from providing a breath sample, upon demand.

In summary, the Tribunal finds:

1. The Applicant was the driver of the vehicle who failed to comply with a demand for a breath sample on January 24, 2013, when requested by a police officer under Section 48.3 of the HTA, and

2. The Applicant has failed to provide a medical reason to explain why he refused to submit a breath sample for the breathalyzer when requested by a police officer.

DECISION

Upon the application by the Applicant to appeal the suspension order of the Registrar dated January 24, 2013, pursuant to section 48.3 of the HTA and having considered the evidence filed with the Tribunal and the submissions of the Registrar and of the Applicant;

Pursuant to the authority vested in it under section 50.1(4) of the HTA, the Tribunal confirms the suspension.

LICENCE APPEAL TRIBUNAL

D. Ian Turnbull, MD Presiding Member

RELEASED: March 11, 2013