Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-04-03
FILE:
7949/ADLS
CASE NAME:
7949 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, Member
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Kyle M. Biel, Agent
Heard by teleconference:
March 27, 2013
REASONS FOR DECISION
A teleconference hearing was held on March 27, 2013, 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 RULED TO CONFIRM the suspension imposed by the Registrar pursuant to section 48.3 of the HTA for the following reasons.
BACKGROUND
The Applicant appealed by way of a Notice of Appeal under section 50.1 of the HTA. The Applicant appeals from the order of the Registrar of Motor Vehicles (the "Registrar") dated December 15, 2012.
Reason for the Appeal
The reasons for the appeal set out in the Notice of Appeal are summarized as follows:
The Applicant states he was unable to provide a breath sample for a police officer because of a medical reason.
ISSUE
Did the Applicant fail or refuse to comply with a demand made under section 254 of the Criminal Code (Canada) because he was unable to do so for a medical reason?
FACTS
The Applicant is a 32-year-old tradesman whose company van was pulled over by the Ontario Provincial Police (OPP) late in the day of December 14, 2012.
The officers observed the Applicant's vehicle driving slowly and weaving in its lane. They were concerned about a sobriety check.
One officer believed the smell of alcohol could be detected on the Applicant's breath and issued a demand to provide a breath sample.
After numerous failed attempts, the Applicant was charged with failure or refusal to provide a breath sample under Section 254 of the Criminal Code of Canada.
The Applicant received an Administrative Driver's Licence Suspension (ADLS), dated December 15, 2012 (Exhibit 1).
The Applicant sent a Notice of Appeal, dated March 4, 2013 (Exhibit 2) stating that "although the suspension is almost over, don't require it on my record."
The Criminal Code charge was withdrawn (without reasons) on January 30, 2013 (Exhibit 5).
The Applicant's ADLS expired March 15, 2013, and his driving privileges restored.
The Applicant wished to proceed with a hearing, hoping the Tribunal's decision might remove the "blemishes" of December 15, 2012 and March 15, 2013, from his certified driving record. The Applicant has no demerit points (Exhibit 6).
Applicant's Evidence
The Applicant provided two documents from his physician of 10 years (Exhibits 3 and 4).
Exhibit 3, dated December 20, 2012, stated the Applicant had "acute bronchitis" and was "unable to forcibly expire well with illness," adding "formal spirometry results to follow."
Exhibit 4, dated January 22, 2013, states the Applicant "suffered from acute bronchitis previous to my assessment on December 19, 2012, resulting in being unable to forcibly expire for testing."
The Applicant suggested that the Ontario Court of Justice ruling (Exhibit 5), "this charge be marked withdrawn," should be considered by the Tribunal to support his medical evidence and his wish to have the "blemishes" on his driving record withdrawn.
In cross examination, Mr Biel asked the Applicant about his health around December 14 and 15, 2012. The Applicant stated that he had "flu-like symptoms" beginning in early December. He says he has "weak lungs" and, in his experience, the flu-like illnesses often lead to lung infections and "pneumonia." He had to take time off work.
On the day he was pulled over by the OPP (December 14, 2012), he had worked all day and subsequently attended a wake from 7 - 9 pm. He stated that he had no alcohol.
Mr Biel asked why both OPP officers could smell alcohol in his company van and later in the OPP detachment cell (Exhibit 6, p. 45) to which the Applicant responded that smell is "just one of the (six) senses" and "everybody smells things differently." He repeated he had no alcohol that night.
When asked why he told the OPP officers he had "pneumonia", the Applicant stated that with the production of "disgusting mucous" in the past, this meant pneumonia."
The Applicant could not answer why he couldn't provide a breath sample - "good question". He wasn't sure what was required; evidently, he didn't breathe long enough or hard enough -- "just couldn't fulfil it." He denied forcibly stopping the test.
Regarding medication for his illness, the Applicant stated he was taking an antihistamine and antibiotics; he did not have a "puffer." When asked by Mr Biel about the details of his doctor's visit December 20, 2012, the Applicant "can't recall" any details regarding a chest x-ray, prescriptions or other tests. Nor could he say for sure whether he was able to complete the spirometry test mentioned in his doctor's memorandum, although he said the breathing tube in the spirometry test is "awfully similar" to the one used in the roadside test.
Respondent's Evidence
Since the two attending OPP officers are "indefinitely off" and unable to attend the hearing, Mr Biel filed their "will-say" statements (Exhibit 6).
The Officer who went to the driver's window thought they could detect the faint smell of alcohol (Exhibit 6, p. 58). The other officer said the Applicant was sucking a candy, and he couldn't detect the smell of alcohol.
Both officers stated the Applicant was instructed how to use the instrument and told the consequences of not providing a sample. They both described seven (7) attempts, none successful, with the Applicant stopping part way through the procedure. Upon failure to complete the test, the Applicant was charged and arrested.
The Applicant told the officers he "had pneumonia for the last month and is just getting over it."
In response to these statements, the Applicant stated "most police officers are thorough and competent." but noted these officers forgot to serve an ADLS and impound notice until the next day. He submitted that they may be "not as thorough" as believed, and their other observations could be affected.
Submissions
The Applicant submitted that his criminal charge was withdrawn; he has no "bad infractions" on his driving record. He wants a clean driving record and "all to go away.
Mr Biel suggested the Applicant's family physician's diagnosis of "acute bronchitis" played no role in the Applicant's ability to provide a breath sample, and the Applicant consciously and deliberately did not provide a breath sample.
The Applicant volunteered the diagnosis of pneumonia, rather than bronchitis to the police officer. There is no description of any pulmonary symptoms, such as coughing, difficulty of breathing or shortness of breath, in either officer's notes.
The Applicant was given a second chance to provide a breath sample after being arrested and was unsuccessful after three more attempts (Exhibit 6, p. 41).
His doctor's completion of the Applicant's Medical Information Form (Exhibit 3) does not mention pneumonia, and there is no detail as to the Applicant's version of his "weak lungs," i.e. symptoms, listing of previous visits, medications or investigations.
The physician's notes are difficult to reconcile with the Applicant stating to the police officers that he had been feeling well the past four days and that on December 14, 2012 he had worked all day and attended an evening wake. The fact the Applicant neither needed nor requested medication at the time of the test suggests he was well enough to take the test and his medication (which was in the van) was not needed.
The Respondent asked that the Tribunal should confirm the ADLS suspension..
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.
APPLICATION OF THE LAW TO FACTS
The onus is on the Applicant to provide medical evidence that prevented him from providing a breath sample at the time of the breathalyzer request.
The Tribunal finds the Applicant did not suffer from a medical condition at the time of the demand that would have prevented him from providing a breathalyzer sample.
The Tribunal finds the Applicant made a conscious decision not to provide a breath sample exam when the officers made repeated requests and explained the possible consequences of his refusal.
Given the description of the Applicant's driving, the OPP officers were justified in pulling over his van. When one of the officers thought they smelt alcohol on his breath, the officer was justified in making a demand for a breath sample. The Applicant's possible state of intoxication is not the issue before the Tribunal.
The withdrawal of a criminal charge (Exhibit 5), dated January 30, 2013, has no impact on the Tribunal's decision.
The Tribunal has reviewed the statements of the two OPP officers and concludes that they were thorough and consistent. The Applicant repeatedly (seven times) stopped while using the breathalyser tube. The Applicant himself has no answer for his inability to provide a breath sample.
Rather than describing symptoms which may have caused the Applicant to provide a breath sample, both the physician and Applicant provide diagnoses. His physician gives a diagnosis "acute bronchitis." Similarly, the Applicant says, "recovering from pneumonia." There is no mention of cough, wheezing, fever, chest pain or shortness of breath in either the Applicant's testimony or his physician's submissions.
Significantly, there is no mention signs or symptoms by either OPP officers, or the Applicant, at the time of the request to provide a breath sample.
The police officers 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 disputed this.
In summary, the Tribunal finds 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 December 15, 2012, 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;
The Tribunal finds that the Applicant failed to satisfy the onus of proof upon him to establish, on a balance of probabilities, that he suffered from a medical condition that precluded his compliance with the demand made under Section 254 of the Criminal Code to provide a breath sample because he was unable to do so for a medical reason.
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: April 3, 2013