Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-01-08
FILE:
7771/ADLS
CASE NAME:
7771 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
Applicant
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Dr. David W. Hurst, Presiding Member
APPEARANCES:
For the Applicants:
Brian E. Starkman, Counsel
For the Respondent:
Kyle M. Biel, Agent
Heard in Toronto
December 20, 2012
REASONS FOR DECISION
A hearing was held on December 20, 2012, at the Tribunal’s Chambers in 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 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 under section 50.1 of the HTA. The Applicant appeals from the order of the Registrar of Motor Vehicles (the "Registrar") dated November 10, 2012.
REASON FOR APPEAL AND FACTS
For the Applicant
On November 10th, 2012, the Applicant was driving home after dinner with a friend and encountered a RIDE inspection.
Police Constable Shay stopped the Applicant stating he had legal authority to do a breathalyzer test.
At 10:35 p.m. he demonstrated the breathalyzer instrument to the Applicant, and asked her to blow into it according to his instructions. His report stated that she made 8 attempts and was unable to activate the breathalyzer device. After the eighth attempt he placed her under arrest for “failing to provide”. She explained to the police officer that she had tried her best but for reasons unknown to her she couldn’t activate the breathalyzer.
On that evening she encountered the RIDE roadside inspection after she had been at dinner with her friend. Her reaction was “OH! OH!” She said the officer asked her about her alcohol consumption that evening and she described it as wine with dinner. She first tried the breathalyzer while sitting behind the wheel in her car and then made further attempts in the back seat of the police cruiser. These attempts were made and she stated that she kept running out of breath on each of the eight occasions. The tone signal stopped before the breathalyzer machine was activated. Constable Shay instructed her to blow harder so that the tone signal wouldn’t stop. She tried her best but was unable to satisfy the requirements. Her medical history on that date included that she had a cold, but also had suffered with asthma, and was sorry she couldn’t complete the test.
The Applicant had been seeing Dr. D. B. since 2009. She was diagnosed as asthmatic 15 years ago. Treatment had begun by using inhalers which made her jittery. She discontinued the use of puffers, to the disappointment of her doctor. She simply learned to live with her asthma. She did not have a puffer with her in her car on that date. With this experience with the roadside testing, stress was certainly a factor. She said at Dr. D.B’s. office she had tried the peak flow test and it was difficult. She explained to Mr. Biel, agent for the respondent, that the police officer was polite but also frustrated. There was no yelling. She said that she had had possibly two drinks of wine at the restaurant half an hour previously. She told the police officer of her asthma but did not ask for medication.
She said that she had been seeing Dr. D.B. fairly frequently lately due to atrial fibrillation. She is on medication for that and is due to take cardiac stress tests. While not using puffers over the 15 years duration of her asthma, she had recently (for the past two years] been taking an oral medication called Advair. She has used one puffer in three years. Her asthma had not been discussed lately with her doctor. She has not been to an emergency room nor has she been hospitalized for asthma, and she has not seen a respirologist to date. She described doing the peak flow meter test which requires a hard quick blow, and only lasts a few seconds. She told the Tribunal that she had not told the police office of her breathing problems.
Mr. Starkman asked the Applicant to describe the experience of trying to activate the breathalyzer, and the Applicant said that she tried and tried, and her lungs felt “congested” or “closing in” when blowing. She stated that she gets winded easily when walking or doing mild exertion.
For the Registrar
Mr. Biel then called Constable James Shay of the OPP as a witness. He explained that he was part of the RIDE program. He had encountered the Applicant on the aforementioned date and took notes, none of which have been changed. He went on to state that he was conducting his roadside checks on the 10th of November 2012 and at 10:30 he stopped the Applicant’s car. She was the lone occupant. He noted that she smelled of alcohol and she stated that her last drink had been taken a half hour before she was stopped.
The officer surmised that the Applicant was driving while having consumed alcohol. He placed her in his cruiser for a breathalyzer test. He explained in detail the use of the breathalyzer device, and when she agreed that she understood the method, he gave her a sterile mouthpiece with no blockage and had her demonstrate her ability with this device. The first test was given at 10:35. The Constable had explained in a very detailed manner how to activate the breathalyzer, and the tonal sound that comes which indicates it is working. The officer noted that an e-zero error record indicated that she had not blown sufficiently through the breathalyzer. The constable described her method as blowing then stopping then blowing again. He surmised that she had taken another breath, but she didn’t take a full breath so the tone would stop indicating failure. He did not think she was taking a full breath between her interrupted puffing into the tube. Constable Shay indicated the Applicant was not blowing hard enough or long enough and that is why the tone was repeatedly interrupted, and he then explained that she could be “charged”.
The officer then paused to check her licence with the central registry and told her he was doing a criminal record check and a licence check. This was a routine. More attempts to activate the breathalyzer were carried out, up to eight in all, and in each case there was an e-zero result. The officer then placed her under arrest for “failure to provide”. He then noted that she would blow for 1–2 seconds with the tone and then she would stop and try 1–2 more seconds of blowing. The office offered her an opportunity to get legal counsel and she rejected this plan. She said that she tried and that you could hear her difficulties in her lungs. She described no wheezing or shortness of breath and that she spoke to the officer as much as she was speaking today (during the Tribunal hearing).
Mr. Biel’s questions to the Applicant disclosed that she had not complained about a breath problem or that she might want drugs to help her with the breathalyzer test.
The officer said that if she had requested medication this would have been allowed. Mr. Biel inquired about the advisability of a blood test for alcohol and the officer said this is only done if the driver can’t give a breath sample. He said this can’t be done at the roadside. He said the use of a blood sample would ordinarily be done if there was an injury as reported by a doctor. The doctor decides whether a blood sample would be needed. He said the Applicant had no trouble speaking, and demonstrated no shortness of breath or cough.
In Cross-Examination
Mr. Starkman dwelt in detail about the coaching of the Applicant to use the machine. The officer stated he advises people to blow hard and long and “keep going, keep going” and tells them it is like blowing up a balloon, and also explained that he coaches the driver during this blowing into the machine. He recalled telling the Applicant to blow harder and if there is no tone signal she is not blowing hard enough. The officer always explains that “I must hear the tone”. The officer then explained that her technique of blowing consisted of blowing for one or two seconds and then stopping and then doing it again, thereby interrupting the tone signals.
On questioning from Mr. Starkman he said he always goes with the tone signal as to the success of the procedure. He did not observe that the Applicant was blowing air around the device and she did not puff up her cheeks. If not enough force is being applied by blowing there would be no tone signal. He repeatedly explained that he saw her do the blowing procedure in short spurts. She was blowing into it but insufficient amounts or force. Mr. Starkman asked the officer if they should have gone to the police station and officer Shay said he did not consider this as necessary, and he considered that as not an option on that occasion. Mr. Starkman again addressed the matter of the technique of blowing and indicated that an e-zero code could occur with the driver blowing hard and long. Constable Shay was not certain about that. He again stated however that an e-zero recording means the blowing has not been hard enough or long enough. Uneven blowing is considered to mean that she is not blowing long enough. He stressed that to activate the machine properly the driver must blow longer.
At this juncture Mr. Biel had no questions.
Mr Starkman stated that the Applicant had tried to blow properly into the machine and documented today that she met the threshold but she has asthma and she explained this as part of her medical history. She understood the importance of the tone and that it indicated she needed a greater effort but she was unable to comply. She complained that she should have been told to blow more evenly and that this had not been made clear to her. She couldn’t, and was not coached to blow evenly. When she tried she felt a “weakness in her chest”.
At this point the Tribunal inquired about her use of an asthma drug called Advair. She explained that she gave up on the puffer and only used it for serious events perhaps 3–4 times a year.
The applicant said that the heaviness in her chest or a wheezing for example occurs when indulging in light exercises such as walking or with stress, and she says she wheezes all the time. The Applicant stated that she was having a routine day regarding her breathing leading up to the roadside test. She enlarged on this by saying that she wouldn’t be able to activate the breathalyzer today given the experience with the Tribunal and that she felt queasy today.
Mr. Biel summarized reviewing the levels of impairment of breathing and the workings of the breathalyzer device. Mr. Biel said we are here today to obtain if there was a reason why the Applicant couldn’t give a breath sample. He submitted that medically asthma was playing no role at that time. He indicated that the Applicant was on the horns of a dilemma and was not going to co-operate because she was afraid of the test results. Constable Shay’s testimony stating that he had carefully advised her and that he saw nothing to suggest a respiratory problem with no coughing or wheezing is relevant. Mr. Biel indicated that Dr. D. B.’s comments were not challenged at the hearing today. Medical attention was not summoned for her on that evening.
Mr. Biel accepted that coaching by the police officer was a standard procedure. Constable Shay had done a good advisory despite Mr. Starkman’s statement that the explanations were faulty. The problem on that evening was that the Applicant was using avoidance techniques when blowing into the instrument. As to her medical condition Mr. Biel explained that any respiratory problem doesn’t provide an excuse and that Dr. D. B. explained in his note that her asthma is simply untreated. She has no serious breathing problems and no need to see him. Dr. D. B. also indicated that there were no symptoms of importance and that there was no history or any signs of a problem. The Applicant needed no medical care. He observed that it was only after this charge by the police she decided to see her doctor. He also observed that the Applicant has seen her doctor over a period of three years and has not discussed her asthma. Therefore it is well controlled and also no excuse regarding the present matter. Mr. Biel observed that the breathing test with Dr. D.B. was done one month after the RIDE experience and on that occasion it was a “peak flow” study. The doctor did not state if this might be a factor pertaining to her breathalyzer activation problems. In summary Dr. D. B. does not tell us about her breathing ability. Mr. Biel completed his review by stating that the Applicant’s medical condition was not a factor here and he asked that the Tribunal confirm the Ministry’s decision.
Mr. Starkman began his summary by referring to a previous LAT case and it was a ruling of the Tribunal today that this was not appropriate. Mr. Starkman began his case by stating that the Applicant simply couldn’t blow into the device.
A review of the Medical Report by Dr. D.B. is pertinent to this hearing. A report was sent to Mr. Biel and is dated December 12th, 2012. It was addressed TO WHOM IT MAY CONCERN: and therein he said he had seen the Applicant on Monday December 10th, 2012.
He stated he believed this patient has had untreated asthma and he observed this especially when she was asked to blow into the “peak flow” meter and that her flow of air is significantly reduced. He also indicated that the patient first came to his practice in 2009 with a diagnosis of asthma from her previous physician. He found that different inhalers gave difficulties and she has had no treatment and that she has not had severe enough breathing problems to be seen for her asthma.
Since her asthma reduces her ability to breath out fully she may not have been able to exhale sufficiently for the test for the police. On this examination on December 12th he reported the patient’s values at 250L/minute with an expected value of 445L/minute. The doctor then noted that although she was seen on December 10th, 2012 for asthma, asthma has not been discussed at previous visits one of which was on September 27th, 2012. On this occasion he observed that he heard wheezing in all lung fields and prescribed a new inhaler.
ISSUE
Did the Applicant fail or refuse 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?
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(a) of the Tribunal's Rules of Practice states:
(a) The Applicant has the onus of establishing the merit of the appeal.
APPLICATION OF THE LAW TO THE FACTS
The Applicant’s counsel described her experience with the roadside RIDE examination on November 10th, 2012. The main thrust of his presentation was to question the police officer in great detail as to the techniques used to coach the Applicant in the matter of how to activate the breathalyzer. He reviewed all aspects of the matter of breathing out with enough force to activate the tone signal on the breathalyzer which indicates that sufficient volume and force had been provided to obtain the sample of air from her lungs. He noted that she tried her best but found herself unable to comply. It was clear from the counsel’s questioning that PC Shay had performed correctly and in a proper manner in his interview with the Applicant and with his attempts to have her activate the breathalyzer.
The Tribunal heard the fact that the Applicant thought she was developing a cold and that she was known asthmatic up to 15 years duration. It emerged that she was not happy with inhalers and stopped using them and may have been taking an oral medication. It emerged during this testimony that the Applicant had just left a restaurant where she and her friend had consumed a bottle of wine during dinner and the Applicant and said that probably her friend had a little more than half of the bottle. It also emerged that the Applicant has never sought treatment in an emergency room or hospital for her asthma.
Regarding her ingestion of alcohol that night she described her intake as “two glasses of wine”. Mr. Starkman went into great detail in questioning Constable Shay about how he had coached the Applicant about blowing into the device all of the options as to which way she had been blowing or not blowing. He then questioned why Constable Shay had not taken her to police headquarters for further measures and Constable Shay’s answer was that this was not an option. The Tribunal presumes from this statement that the officer was not convinced that such a measure was necessary. The Tribunal observes that eight consecutive failed attempts to active the breathalyzer with coaching indicate that there was avoidance.
Mr. Biel in summary had indicated that the Applicant was afraid to blow into the device properly for fear that she might have a high reading. He observed that Constable Shay had not seen any evidence of a respiratory difficulty during his roadside test. Mr. Biel also observed that Dr. D.B. report has not been challenged by Mr. Starkman. Mr. Biel noted that there was no real respiratory problem which would have excused her from blowing satisfactorily into the device.
A review of Dr. D.B’s. Medical Report shows that he has seen her at intervals over three years and the subject of asthma has never come up.
The Tribunal was then left with evidence that the Applicant had consumed possibly close to half a bottle of wine up to approximately half an hour before she was presented with her roadside dilemma by the police.
It is documented that her asthma while perhaps causing some wheezing has not caused her much in the way of medical difficulties as there has been virtually no treatment dating back 15 years.
It is obvious Constable Shay having observed that eight consecutive failures to activate the breathalyzer with a driver who is showing no signs of respiratory difficulties indicated to him there was avoidance or refusal to provide a sample and therefore he placed her under arrest for these reasons.
The Applicant’s counsel failed despite detailed questioning to demonstrate that the Applicant suffered from sufficiently deficient exhalation to render her incapable of activating the device.
Mr. Biel clearly stated that the Ministry’s position is that the Applicant was avoiding the activation of the device lest she produce a reading above the legal limit. Mr. Biel’s observation is that the Applicant did not ask for any medical attention. He drew attention to Dr. D. B’s letter which describes her asthmatic condition as not needing to be discussed and not requiring treatment other than a new puffer, of which she has had many and doesn’t use them. The Tribunal observes that the Applicant could have made a more successful attempt to breathe into the breathalyzer.
The Tribunal does not know if the Applicant was using maximum effort during the “peak flow” test done on December 10, 2012.
DECISION
Upon the application by the Applicant to appeal the suspension order of the Registrar dated November 10, 2012 pursuant to section 48.3 of the HTA and having considered the documents filed, the evidence from the parties 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
David W. Hurst, M.D.,
Presiding Member
RELEASED: January 8, 2013