Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9595/ADLS
CASE NAME: 9595 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: Dr. David Borenstein, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle Biel, Agent
Heard in Toronto: June 19, 2015
REASONS FOR DECISION
A hearing was held on June 19. 2015, at 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 June 22, 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
By 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 May 3, 2015.
The reasons for the appeal set out in the Notice of Appeal are summarized as follows:
The Appellant feels she suffered from a medical condition that precluded her from providing a breathalyser sample when requested, as outlined below.
ISSUE
Did the Appellant fail or refuse to comply with a demand made under section 254 of the Criminal Code (Canada) because 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
In the early morning hours of May 3, 2015, the Appellant was pulled over by the RIDE program and asked to provide a breath sample to prove sobriety. The police provided a tutorial on how to provide a sample, and then proceeded to give her approximately 10 attempts. None of the samples contained enough effort or volume to register a reading. The Appellant was arrested and taken to the police station to provide a sample with a different machine, but upon arrival was informed this was not possible as this was not the proper legal procedure. She was given a Notice to Appear in court and subsequently the criminal charges were dropped. She is appealing the mandatory 90-day suspension of her driver’s licence for failure to provide a breath sample.
The Appellant’s Evidence:
Her young daughter is very sick from a rare form of cancer and she must drive her to medical appointments three times per week. She was driving home to be with her daughter on the night she was pulled over by police. She had been out just to get a short break. She was anxious to get home. She had additional stressors in her family as well, caring for her own mother, and was nervous and was focused on getting home. Once pulled over, she had asked police to call her husband several times, so that he might go home to be with their daughter. She was getting more anxious with passing time. She provided a very extensive and detailed outline of the night’s events to the Tribunal. She wanted to do a blood test at the police station, but wasn’t permitted to do so.
The next day she went to a walk in medical clinic and described her symptoms to the physician who felt she had a panic attack the previous evening. Dr. H wrote a note stating this “rendered her unable to comply with a breathalyzer examination.”
Court transcripts provided as evidence show charges were dropped, possibly due to the actions of the police officer on scene as described below or due to the suggestions of anxiety interfering with the breathalyzer test as suggested by the walk in clinic physician. She was also concerned that her lawyer during the criminal proceeding didn’t have full disclosure, however, she did have access to all the documents being presented at Tribunal.
On questioning from the Registrar’s Agent, it is clear the Appellant was certainly nervous, stressed and possibly a bit short of breath with a “racing heart’, however, she was clearly conversing with the police officer at the scene and was alert enough to have a very detailed recollection of the events that took place. The physician she saw the next day performed no physical exam or objective testing and had no past medical history on which to support a history of anxiety disorder that could lead to such a disabling panic attack. This was the first time she had ever attended this particular medical clinic or seen this physician and thus the note the physician wrote is basically the Appellant’s own history of events. She was prescribed medication for anxiety at this appointment, but she has not felt the need to use it since the roadside events.
The Registrar’s Evidence:
The Registrar called the arresting officer, Constable CS as a witness. He brought his roadside notes for reference. These were entered into evidence. He pulled the Appellant over to the side of the road. She seemed coherent and well mannered, although there was a smell of alcohol on her breath. She admitted to drinking two beers on the evening in question. Her presentation was of someone who was calm though a little anxious, but who easily conversed with him and answered questions, and was obviously concerned about getting home to her child.
Specifically, she was not struggling for breaths, or to speak. There were no hysterics and the Appellant was calm. She repeatedly asked for the police to call her husband to go to their home. The breathalyzer test was demonstrated by police and then the Appellant was given multiple chances to provide a sample. She appeared to only provide two-second breaths with each sample. At one point, she sat down on the curb and really ‘concentrated’ on providing a sample. The officer was asked by the Tribunal for clarification on what he specifically meant by the word ‘concentrated’. He testified that the Appellant sat down while holding the breathalyzer and appeared to think and focus on how she could comply. She did appear to become a little more anxious when told of the consequence of not providing a breath sample. After multiple attempts, she was arrested and taken to the police station, a procedural error. She should have been given a Notice to Appear in court at the roadside and released with a seven-day car impoundment and 90 driving administrative suspension.
In cross examination, the Appellant asked the Constable how long he’d been administering roadside breath tests; he answered since January of this year. He has been with the police force for 6 months. She had no further questions.
Closing Submissions:
The Appellant stated she only had two beers and tried hard to give a sample, but was very nervous. She believes she suffered a panic attack that precluded her from providing a proper sample. She really needs to drive in order to take her daughter to medical appointments. The criminal charges have been dropped, and she has already undergone great hardship by having to take her ill child on the bus to the hospital, and paying legal fees for a criminal defence.
The Registrar’s Agent provided two decisions of the Tribunal in support of his position. He submitted that the points these decisions support are:
a. The withdrawal of criminal charges does not automatically mean the administrative suspension requires reversal.
b. The attempt to provide a sample to the breathalyzer is not enough, The law demands that a breath sample be obtained. The words “failed to comply” are equal to not obtaining a reading even if attempted.
Furthermore, the Registrar argues that one must have both an illness that prevents one from giving a breath sample, and two that illness must be severe enough at the time of request to prohibit sample collection. Without both, the Tribunal cannot reverse an administrative 90-day suspension.
In this case, there is no previously documented condition to support an anxiety disorder so severe it rendered the Appellant unable to provide a breath sample. The only suggestion of a panic disorder is from the one physician who saw his patient after the fact, with no corroborating past history beyond this one event, and whose decision is completely based on the Appellant’s description of this one event. Accepting that the Appellant was nervous, it would be reasonable to assume that most people when pulled over by a RIDE program are nervous, but still expected to provide a breath sample on demand.
The condition of the Appellant described by both her recollection and that of the arresting officer, do not suggest a person unable to provide a 10 second flow of breath into the breathalyzer. The officer has been very honest about his procedural mistakes handling this case, but none of these created a hindrance to providing a sample. The Registrar feels the Appellant’s inabilities to provide the breath sample to be purposeful.
APPLICATION OF THE LAW TO FACTS
In cases of an administrative suspension, the onus is on the Appellant to provide medical evidence showing she was unable to provide a breath sample at the time of the breathalyzer request.
The Appellant’s personal circumstances, as stressful and tragic as they are, are not factors that allow for the Tribunal to reverse an administrative suspension. There are only two prescribed grounds on which the Tribunal can set aside a suspension of this nature. The Tribunal is bound to apply the test as set out in the legislation.
The evidence of the police and the Appellant describes a woman with all her faculties, mentally and physically. She was completely of sound mind and physically was able to carry on a conversation and operate a motor vehicle. This suggests the reasonable ability to blow into the breathalyzer. She did not ‘legally’ comply. The closing summation of the Registrar is quite logical and is supported by previous decisions from the Tribunal. Being nervous alone cannot be grounds by which to reverse administrative suspension, as that could essentially negate the law’s intent. The Tribunal does not offer any opinion as to the Appellant’s personal motives, but accepts fully that the Appellant was nervous, anxious and stressed, contributed to by her current personal life circumstances.
The letter written by Dr. H does outline the patient’s description of events such that one could reasonably feel she was anxious and panicked, however, neither he nor the Appellant describe any prior history of an anxiety disorder or panic attacks, nor has any objective medical test suggested another medical condition which would not allow the Appellant to provide a sample. Anxiety is a spectrum that can manifest symptoms that range from mild aggravations to complete disability. No comment is made as to follow up by the physician or as to where on the spectrum she might fall. Her testimony suggests this to be a single isolated incident, as she has not even needed to use the prescription she had been given by the doctor. The crux of the matter for conditions with this type of spectrum in symptoms does then become a question of how disabling are the symptoms at the time the breathalyzer sample is demanded. The testimony of both the Appellant and the police officer in regards to how she appeared, was able to converse, was able to think about calling her husband to care for her daughter, and was able to ‘concentrate’ on giving a sample, do not suggest a disabling panic attack with hyperventilation and severe shortness of breath, as she could easily talk and sit calmly.
On the balance of probabilities, the Tribunal finds that the Appellant has not established that at the time of the breathalyzer demand on May 3, 2015 that she was unable to provide a breath sample due to a medical reason.
DECISION
Upon the application by the Appellant to appeal the suspension order of the Registrar dated May 3, 2015 pursuant to section 48.3 of the HTA and having considered the evidence filed with the Tribunal and the submissions of the Appellant 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
Dr. David Borenstein, Presiding Member
RELEASED: June 22. 2015