Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8591/ADLS
CASE NAME: 8591 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 la 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: Alan Brass, Counsel
For the Respondent: Kyle M. Biel, Agent
Heard by teleconference: February 21, 2014
REASONS FOR DECISION
A hearing was held by teleconference 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 February 21, 2014, 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.
BACKGROUND
The Applicant appeals from the order of the Registrar of Motor Vehicles (the "Registrar") dated December 24, 2013. The reasons for the appeal set out in the Notice of Appeal are summarized as follows:
"I was unable to provide the required breath sample because of a medical condition."
Documents were entered as exhibits with consent of both parties.
The issue on this appeal is as follows:
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?
The Applicant has the onus of establishing the merit of the appeal.
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.
FACTS
Applicant's Evidence
Applicant's Counsel referred to the letter dated January 24, 2014 from the Applicant's family doctor of many years (Exhibit 2) which stated:
- The Applicant has "severe chemical bronchitis from excessive consumption of cigarettes, up to four packages a day."
- The Applicant "was exhausted and suffering from severe chemical bronchitis" when stopped by the police officer at 14:46 on December 24, 2013.
- The Applicant "was unable to breathe sufficiently into the breathalyzer due to choking from what was probably a viral infection on top of his pulmonary disease."
- The Applicant "has significant pulmonary dysfunction which, with a respiratory infection, would have made it difficult, if not impossible, to give an adequate respiratory sample."
Applicant's Counsel further stated that cross-examination of the Registrar's witness would corroborate the Applicant's physician's opinion.
Evidence of the Police Officer
The officer described the events of the mid afternoon of December 24, 2013, from the time the breathalyzer (Alcotest 6810) was brought to his cruiser by another officer.
After checking the device and showing the Applicant how to blow, the Applicant made three attempts. On the first and second attempts, the Applicant placed the tube between his upper lip and moustache and did not blow.
On the third attempt, the Applicant briefly put the tube in his mouth, puffed once "for not even a second," removing the tube immediately. The Applicant also had a single cough after the third attempt.
The officer described the Applicant's attempts to use the breathalyzer as "the most feeble attempts he had ever seen."
The Applicant then tried to put the breathalyzer on top of the cruiser and said, "there you go." The officer responded by arresting the Applicant for impaired driving (and later for failure to provide a breath sample).
In cross examination, the Applicant's Counsel asked the officer about the time frame for the breathalyzer testing, and the officer answered, "about 90 seconds." Counsel asked if the officer had enquired about dentures or whether the Applicant had respiratory difficulties. The officer responded, "no."
The Tribunal asked the officer to clarify his statement, "in my experience as a police officer and a breath technician, those were the three worst attempts at blowing into a device I had ever seen." The officer stated he had seen, "at least 100 breathalyzer tests at the station" and "10-15 tests on the road."
Closing Statement - Applicant
Counsel relies on the detailed family doctor's medical report which "taken in totality" explains the Applicant's failed attempts to blow into the breathalyzer device. He stated that the police officer had "not a wealth of experience" with the breathalyzer in allowing the Applicant only three attempts to provide a breath sample. Furthermore, the officer did not ask the Applicant if he had a prior medical condition which would make it difficult for him to provide a breath sample.
Counsel cites the single cough after the third failed attempt as proof of his client's pulmonary dysfunction, which discharges the Applicant's onus to prove that he had a medical condition at the time, which prevented him from providing a breath sample on demand.
Closing Statement - Registrar
The Registrar's Agent says the family doctor's mention of "severe pulmonary dysfunction" does not play a role in the Applicant's failure to provide a breath sample on demand on December 24, 2013.
The Agent states the Applicant, possibly because he had "imbibed alcohol”, had consciously and deliberately decided not provide a breath sample upon request from the officer.
The Registrar's Agent states that a single cough after the third failed breathalyzer attempt does not mean the Applicant was suffering from his respiratory problems to a degree that he could not provide a breath sample when requested by the police officer. The testimony of the officer does not suggest the Applicant was in any distress, choking or short of breath.
The Registrar regards the physician's opinion that the Applicant had "probably a viral infection on top of his chronic pulmonary disorder" as speculation.
The Registrar states the doctor's letter, dated January 24, 2014, does not suggest he has seen the Applicant recently. There is no mention of an office visit, x-ray reports, prescriptions, or pulmonary function tests, either before or after December 24, 2013.
APPLICATION OF THE LAW TO FACTS
The only evidence available to the Tribunal is the Applicant's physician's written submission of January 24, 2014 filed pursuant to Rule 15.3(b) and 15.3(c) of the Tribunal's Rules of Practice, and the evidence of the police officer involved in the incident on December 24, 2013.
The crux of the issue is whether the Applicant's medical conditions were present at the time of the breathalyzer testing and caused the Applicant to fail to comply with a breathalyzer demand. The onus is on the Applicant to establish the merit of his appeal
The Applicant's possible state of intoxication or degree of impairment is not within the Tribunal's mandate and does not influence the Tribunal's decision.
Based on the letter from the Applicant’s family doctor, the Tribunal acknowledges that the Applicant has chronic respiratory issues. However, there is no evidence that the Applicant, at the relevant time, indicated to the police officer that there was any medical issue that would make it difficult for him to provide a breath sample. The Tribunal agrees that the letter provided by the Applicant’s physician was lacking relevant information that would suggest that at the time of the breathalyzer testing, the Applicant was unable, medically, to comply. There is evidence, from the police officer, to support the conclusion that the Applicant was not in such distress so as to be unable to provide a breath sample on demand on December 24, 2013.
For the above reasons, the Tribunal concludes that based on a balance of probabilities, the Applicant has not shown that at that time of the breathalyzer request on December 24, 2013 that he was unable to supply a sample of his breath because of a medical reason.
DECISION
Upon the application by the Applicant to appeal the suspension order of the Registrar dated December 24, 2013 pursuant to section 48.3 of the HTA and having considered the evidence filed with the Tribunal and the submissions of the Applicant and of the Registrar;
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: February 25, 2014