Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2015-03-09
FILE:
9350/ADLS
CASE NAME:
9350 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 Impose a 90-Day Administrative Driver’s Licence Suspension
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
D. Ian Turnbull, M.D., Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Kyle M. Biel, Agent
Heard in Toronto:
February 18, 2015
REASONS FOR DECISION
A hearing was held on February 18, 2015, in Toronto, Ontario, 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 released its Decision on February 19, 2015, 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 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 January 28, 2015.
In his reasons for the appeal as set out in the Notice of Appeal, the Appellant states that he was unable to provide the required breath sample because of a medical condition.
Preliminary Matters
The Respondent stated that one of the two police officers summoned to testify was hospitalized and unable to attend. Both officers' notes are included in Exhibit 3.
The Appellant was accompanied by his brother to assist him in following the hearing process and provide translation if necessary. The Appellant’s brother said he was a licensed paralegal, but was not representing his brother, in that capacity, at this hearing. The Tribunal affirmed both brothers.
ISSUE
Did the Appellant 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?
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
The Appellant submitted medical information from his family physician, dated January 29, 2015, which sets out the history of condition precluding patient from complying with the demand under Section 254 of the Criminal Code (Canada) as follows.
Appellant diagnosed with an upper respiratory tract infection, possibly strep throat on January 22, 2015.
The Appellant is currently taking an antibiotic (penicillin) to treat this infection.
It is possible that the pain in his throat prevented him from providing a forceful exhale when he was asked to do so by the police.
Regarding the types of measurements or tests, the doctor stated that, "I examined this patient on January 22nd, 2015 and January 29th, 2015. His throat appeared a bit red on both occasions”.
He also gave relevant details of the Appellant’s last visit.
"On January 22nd, 2015 the patient presented with a history of a sore throat lasting for 4-5 days, without a cough. Based on my examination, I diagnosed him with a strep throat, and prescribed Penicillin V for 10 days. I reviewed him again on January 29th, 2015."
The Appellant’s brother stated he helped draft the letter dated January 30, 2015, attached to the Notice of Appeal.
The Appellant has been a truck driver for eight years. On January 28, 2015, he was involved in a "minor collision" with a passenger vehicle on a major thoroughfare. The Appellant’s day started at 6:00 a.m., the accident was approximately 12-hours later.
The Ontario Provincial Police were called and Emergency Medical Services (EMS) were the first responders. A police officer asked if the Appellant had been taking drugs and he replied “no”.
The officer then demanded the Appellant provide a breath sample for the Approved Screening Device (ASD). The Appellant states he told the officers he had a sore throat. The Appellant failed to provide an adequate sample for testing in three attempts.
The Appellant was then placed under arrest and his truck was impounded.
The Appellant states he had not been taking any drugs, nor was under the influence of alcohol. He needs his licence restored since he is a truck driver. He would not be able to support his family or pay bills if his suspension does not get waived. His driving record and criminal record are in “good condition”.
In cross examination, the Appellant stated that he had a few beers around 7:00 p.m. January 28, 2015. He stated that he had not taken time off work and his throat felt "a little better" having taken penicillin twice a day for six days (January 22 - 28, 2015).
The Respondent’s Agent pointed out that the EMS paramedics told the police officers the Appellant had been eating potato chips and an orange prior to their arrival. The Respondent’s Agent speculated this was to "mask" the smell of alcohol on his breath, but could aggravate an already sore throat.
The Tribunal heard evidence from one of the police officers who was at the scene. The officer's partner demanded the Appellant provide a breath sample because the Appellant's eyes were glassy and bloodshot and there was the suspicion of alcohol on his breath.
After checking the ASD (which gathers evidence related to blood alcohol levels only), the officer explained to the Appellant how to blow into the mouthpiece. The Appellant indicated he understood the instructions, and the officer encouraged the Appellant to exhale. The Appellant made three attempts.
On the first attempt, the Appellant placed the tube between his lips and did not blow.
On the second attempt the Appellant puffed briefly, and suddenly stopped. The device showed “blow interruption”. The Appellant was then warned if he did not provide an adequate breath sample on his third attempt, he would be arrested. The Appellant exhaled briefly, then stopped abruptly, yielding another "blow interruption" reading.
The ASD did not read either “fail” or “warning”, but “flow interruption”; meaning the Appellant did not exhale long enough to provide an adequate breath sample for analysis.
The officer (also a paramedic) observed the Appellant's speech was slightly slurred and he did not answer questions appropriately, giving "imprecise answers".
At no time during the ASD testing did the Appellant show any medical distress, such as coughing or shortness of breath.
Following his arrest, the Appellant declined his opportunity to talk to a lawyer.
The officer found the Appellant confused after he explained the immediate 90-day suspension of his driver's licence and impoundment of the truck for seven days. The Appellant reportedly asked (more than a dozen times) if he could drive his truck back to his workplace.
In his cross examination of the police officer, the Appellant asked why the officers did not search his truck for alcohol to which the officer responded there was no requirement, following a demand, to provide a breath sample. When the Appellant’s Agent asked, "could you see his sore throat", the officer said "no".
In re-examination, the officer was asked how long somebody has to exhale for the ASD to provide a satisfactory reading. The officer stated he did not know exactly, but "believes it to be three-to-four seconds".
SUBMISSIONS
The Appellant stated that he is a truck driver, has no other skills and has a clear driving record and no criminal record. He would like his licence back because his employer is still holding his position open.
The Respondent asserts the Appellant did not suffer from a medical condition to prevent him from complying with a request for a breath sample for the ASD. The Appellant never asked for medical assistance, nor showed medical distress (such as coughing or shortness of breath) during the ASD testing.
EMS personnel had evaluated both drivers prior to the arrival of the police and told the officers the Appellant had not been in any medical distress when they evaluated him, and had refused an offer to be transferred to a hospital.
The Respondent states the Appellant’s doctor's suggestion, that after six days of antibiotic treatment, for a possible strep throat infection, the Appellant's throat would still be so sore that he could not exhale for a few seconds into an ASD, is pure speculation. There are no test results to confirm a streptococcal infection.
In closing, the Respondent states the Appellant deliberately chose not to comply with the officer's request to provide a breath sample, and there is no link between the Appellant's "medical condition" and his failure to provide an adequate breath sample for the ASD.
APPLICATION OF THE LAW TO FACTS
The evidence available to the Tribunal is the Appellant’s physician's written submission of January 29, 2015, the Appellant’s letter accompanying his Notice of Appeal and the testimony and notes of the police officers investigating the rear-end collision between the Appellant’s truck and a passenger vehicle on January 28, 2015.
The police officer had reasonably based probable grounds to demand a breath sample, being suspicious of the odour of alcohol on the Appellant’s breath.
The onus is on the Appellant to provide medical evidence that prevented him from providing a breath sample when a police officer issued a demand to the Appellant under section 254 of the Criminal Code (Canada). The Appellant was properly informed of his choices after the demand was read to him.
The ASD device was properly administered by the police officer, and the notes of the officer making the demand (absent on the day of the hearing) concur with her partner's oral testimony. Significantly, neither officer believed the Appellant showed any medical distress at the time of testing, such as coughing, shortness of breath or difficulty swallowing.
After repeated failures to provide an adequate breath sample, the Appellant told them he had a medical condition (sore throat) which made it difficult for him to blow into the ASD.
Based on the family doctor's medical information form, dated January 29, 2015, the Tribunal notes the Appellant was being treated with penicillin for a sore throat – “possibly” strep throat. There is no microbiology throat culture report to confirm a streptococcal infection.
The Appellant's physician suggests there is a "possibility" that the Appellant's sore throat could have prevented him from providing a satisfactory sample for ASD testing.
The Appellant has the onus of providing the merit of his case on a balance of probabilities, not just "possibilities".
The Appellant's final submission did not address either his medical condition at the time he was asked to provide a breath sample, or give any reasons for his failure to provide an adequate breath sample.
Understandably, the Appellant wants the automatic 90-day suspension to be lifted so he can return to his truck driving job. The Tribunal knows some of the consequences of this decision, but unfortunately the Highway Traffic Act does not provide for hardship.
The Tribunal finds that based on the evidence before it, the Appellant has not shown that he had a valid medical reason why he was unable to comply with a reasonable demand by a police officer for a sample of his breath under section 254 of the Criminal Code (Canada) on January 28, 2015.
DECISION
Upon the application by the Appellant to appeal the suspension order of the Registrar dated January 28, 2015, 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
D. Ian Turnbull, M.D., Member
RELEASED: March 9, 2015