Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-10-27
FILE:
9110/ADLS
CASE NAME:
9110 v. Registrar of Motor Vehicles
Appeal under Section 50.1 of the Highway Traffic Act 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
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
David W. Hurst, M.D., Member
APPEARANCES:
For the Appellant:
Sean Heeley, Counsel
For the Respondent:
Kyle M. Biel, Agent
Heard by teleconference:
October 17, 2014
REASONS FOR DECISION
A hearing was held on October 17, 2014, by teleconference, to consider the Appellant'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.
BACKGROUND
The Appellant appealed by way of a Notice of Appeal under section 50.1 of the HTA. The Appellant appeals from the order of the Registrar of Motor Vehicles (the "Registrar") dated August 25, 2014.
Reason for the Appeal
The reasons for the appeal set out in the Notice of Appeal are summarized as follows: The Appellant had esophageal spasms due to his medical condition, namely acid reflux, and due to having consumed water from the toilet bowl when no other water was available to relieve his acid reflux symptoms – and this is what made him unable to perform the required breath test.
ISSUE
Did the Appellant 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 also states, under section 50.1(4):
The [Tribunal] may confirm the suspension or may order that the suspension be set aside.
FACTS
Mr. Heeley, Counsel for the Appellant, opened by objecting to the Ministry of Transportation (MTO) using police officer witnesses with their notes of the event, which Mr. Heeley had not seen. Both officers said they would not refer to their notes, and the Tribunal proceeded on that basis.
On the evening of August 25, 2014, the Appellant was pulled over and then asked to blow into a roadside breath screening device. He cooperated, and he failed this test because it produced a reading of 100 mg/100 ml of blood. Later, at the police station, the Appellant had considerable difficulty achieving a proper exhalation of air into the breathalyzer. Eventually, on the 13th or 14th try, he succeeded, with a recording of 130 mg/100 ml of blood. The Appellant’s argument is that he had difficulty in activating the breathalyzer device because of chest pains and cramps said to be caused by his acid reflux problem. His doctor had told him to use sips of water as the first treatment when he had symptoms, and this was denied to the Appellant as he was in a police cell where the taps on the sink did not work and he had to drink from the toilet. In order to get relief from his reflux symptoms, he asked for water on several occasions. He had no medications with him. The police officers wanted a second breathalyzer test (the initial roadside screening device was not a formal breathalyzer test), and the Appellant refused, saying that he had already given two samples.
Counsel for the Appellant, Mr. Heeley, acknowledged that his client had not brought up the problem of his reflux with the roadside breath screening test. The Appellant did state that the reflux problem began when he was placed in the back of the police cruiser (he is 6’7”, 300 pounds). He didn’t have any water at that time. He described himself as gasping for air in that he couldn’t sit correctly in the vehicle.
The Appellant said he couldn’t give a second sample (which was actually the first formal breathalyzer test) at the police station because of his severe stomach cramps caused by his acid reflux. The Appellant indicated that he had recently received a medical prescription from his doctor for this condition. It was noted that the Appellant’s Medical Information form filed with his Notice of Appeal did not refer to any cramps or pain being associated with his acid reflux – it referred to “chest discomfort and possible esophageal spasms.” In cross-examination, the Appellant acknowledged that he was not gasping for air when he tried to do the initial roadside breath screening test. He did not request medical help.
The Respondent Ministry’s case revolved around the two police constables as witnesses. Constable Eves said that he had stopped a white Chrysler and detected the odour of alcohol. He did a suitable roadside breath screening test which he described as a failure, with a reading of greater than 100 mg/100 ml of blood.
Later, at the police station, Constable Eves said that he was unaware that the sink and water supply in the cell did not work. He said he would have had no issue with allowing the Appellant to drink water during the breathalyzer test at the police station. He said that he had called the Appellant’s lawyer and had no success, and handed him over to Constable Kinghorn. Constable Kinghorn described the use of a double set of handcuffs so that the Appellant could be restrained comfortably. The Appellant’s Counsel questioned the difficulty of placing the Appellant in the cruiser because of his enormous size. The constable said that he had taken care to consider this.
Constable Kinghorn described his use of a video and auditory record explaining this to the Appellant and that they had to do a breathalyzer test. Constable Kinghorn testified that the Appellant attempted this at least 13 times, and that he was holding his head down and allowing air to leak around the sides of the mouth piece; in other words, impairing the success of the test. When asked on the 11th or 12th try if he had any ailment, the Appellant said no. On the 14th try, he gave a sample which showed a reading of 131 mg/100 ml of blood. The Appellant was questioned regarding his drinking and the possible use of other drugs. He denied that he had any other illness or any other medications that were interfering with his tests. When the police wanted a second breathalyzer test at the station, the Appellant said that he didn’t have to do it again, and he refused to cooperate further.
Mr. Biel, Counsel for the Respondent Ministry, summarized by saying that there was no medical reason why the Appellant couldn’t give a second breathalyzer sample. He had completed a roadside breath screening test, and a formal breathalyzer test in the police station when he blew 131. He refused a further breathalyzer test not due to medical issues. He was deliberately trying not to make the procedure work. Mr. Biel said that this had nothing to do with the Appellant’s acid reflux problem, and for the second breathalyzer sample he had simply refused to cooperate. He went on to say that the Appellant’s acid reflux problem doesn’t preclude his ability to give a breathalyzer sample. It was also noted that the Appellant’s medical condition is stable – he hasn’t seen his doctor about it for three years.
Mr. Biel said that the onus was on the Appellant concerning this matter of acid reflux and he has failed to connect this ailment with his inability to blow into the breathalyzer. Mr. Biel would also not accept the matter of the ingestion of toilet water as causing problems – not in such a short interval.
Mr. Heeley summarized the case for his client, describing his cooperation when pulled over in a roadside RIDE test and providing a good sample. His client then developed acid reflux and he was cramped up in the cruiser, and the police were unable to give him a sip of water that he usually used as his first treatment for this difficulty. Mr. Heeley maintained that by the time of the formal breathalyzer test at the police station (with 13 or 14 attempts), the Appellant was likely developing difficulties with cramps from having ingested water from the police cell toilet. The Appellant was not on special medications then, but nine days later needed a prescription from his doctor. Even though his client had stated “no” when questioned about significant illnesses, he was still unable to give a suitable sample to police because of his medical condition.
APPLICATION OF THE LAW TO FACTS
It was pure happenstance that led to the Appellant’s examination by the police on August 25, 2014 in a roadside RIDE program. On the roadside breath screening test and then again in the formal breathalyzer test at the police station, he blew well over the legal limit. He refused a second breathalyzer attempt at the police station, saying that he had already given them two samples.
As a background to this matter, it is evident that the Appellant is a very large man, standing 6’7” and weighing at least 300 pounds. With that, it is not at all surprising that there could be some degree of acid reflux. This ailment has been brought into evidence as creating considerable difficulties for the Appellant, particularly when trying to activate a breathalyzer. Considerable attention was drawn to his acid reflux by his counsel as being a reason why the Appellant could not activate the instrument properly when he was unable to have sips of water which he used for early symptoms, and in this case, unfortunately, he took his sips of water from the police cell toilet.
Mr. Biel has stated that the fact that the Appellant hasn’t seen his doctor regarding his reflux in three years and only recently has decided to obtain a prescription for this problem tells us that his acid reflux is not a factor here.
The legal test for the Tribunal to consider is whether the Appellant refused to comply with the demand for the second breathalyzer test (in the police station) because he was unable to do so for a medical reason. The Tribunal has observed numerous attempts by the Appellant’s counsel to provide all kinds of medical explanations for this inability to activate a breathalyzer. The Tribunal finds that the Appellant has a mild acid reflux problem requiring little medical attention, and it is so mild that sips of water apparently could relieve it. The Tribunal finds that this would not interfere with one’s ability to activate the breathalyzer to any extent close to justifying a refusal or failure to do this test.
The Appellant’s Counsel suggested that the Appellant’s drinking of the toilet water may have interfered with his ability to take the breathalyzer test, and there is a note from the Appellant’s doctor, filed with the Notice of Appeal, to suggest that drinking such water may cause possible abdominal cramps, nausea, vomiting and diarrhea. However, it is speculation to presume that these effects would occur immediately and cause the Appellant to be unable to take the breathalyzer test. Indeed, the Appellant’s own document regarding “Viral Gastroenteritis,” an Internet website page that was filed with his Notice of Appeal, states that “The main signs of viral gastroenteritis manifest in a time frame of 4 to 48 hours and include abdominal pain, diarrhea, nausea and vomiting.”
In addition, the Tribunal finds it very notable that the Appellant did not provide a medical reason for his refusal to take the second breathalyzer test at the police station. Instead, he stated that he did not want to do that test because he had already done two tests (the first one being the roadside breath screening test). This also confirms that there was no valid medical reason for the Appellant’s refusal or failure to take that second breathalyzer test.
DECISION
Upon the application by the Appellant to appeal the suspension order of the Registrar dated August 25, 2014, 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 Appellant;
Pursuant to the authority vested in it under section 50.1(4) of the HTA, the Tribunal confirms the suspension.
LICENCE APPEAL TRIBUNAL
David W. Hurst, M.D., Member
RELEASED: October 27, 2014