Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 9683/ADLS
CASE NAME: 9683 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
9683 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Garry Fisher, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle Biel, Agent
Heard by teleconference: August 4, 2015
REASONS FOR DECISION
A hearing was held on August 4, 2015, 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 released its Decision on August 4 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 July 6, 2015.
The reasons for the appeal set out in the Notice of Appeal are summarized as follows.
The Appellant stated that due to a “lungs’ problem”, he was unable to blow long or hard enough to provide a steady breath for the breathalyzer. He offered to provide a blood sample. The police officer refused and wouldn’t agree to roadside sobriety tests.
The Appellant tried his best “over three times”, to blow as hard as he could, but failed to get a reading. His friend, who was at the scene, offered to blow and “also tried over three times”, failing to get a reading as well.
The Appellant lives 40 kilometres from work and needs a car.
The Appellant does not “believe that it is fair… to have my licenses suspended for 90 days just because I suffer from a lungs’ problem”.
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
Two Halton Regional Police Officers – PC Samantha Coysh and PC Stephane Verreault – testified at the hearing. The Appellant also testified.
In the early morning hours of Monday, July 6, 2015, PCs Coysh and Verreault were called by PC Nichols to a stopped car driven by the Appellant. The Appellant (a 24 year old male) and companions were seen to come out of a nearby bar, and not far away, at a stoplight, revved the motor loudly. The Appellant explained that the car had slipped out of drive and that caused the revving miscue. PC Nichols then intervened and questioned whether the driver had been drinking alcohol. He didn’t have breath testing equipment with him and called PC Coysh and PC Verreault to assist.
PC Coysh noted that she arrived at 0237 hours. At that point, she and PC Verreault took over from PC Nichols. The breath test was explained to the Appellant and demonstrated. The equipment was functioning normally and registered zero blood alcohol for PC Coysh.
PC Coysh testified that over approximately eight or ten minutes, the Appellant tried at least six times to blow into the device. When air flows through the device, a whistling noise is audible. On one attempt, the Appellant produced a brief faint noise. At no point did he show signs of any respiratory distress. He didn’t cough or wheeze. The Appellant said that he does have a “puffer” for his “lungs” condition and didn’t think of it until an hour later when he was under arrest.
Everyone using a breath testing device uses a fresh mouthpiece. The one used by the Appellant was inspected, noted to be obviously patent, and kept as evidence.
After six failures to blow into the device, and a warning given to the Appellant that he could be arrested, PC Coysh then formed the opinion that the Appellant was refusing to provide a sample. He was arrested, cuffed and placed in the rear of the cruiser at 0248 hours.
Between 0310 hours and 0314 hours, the Appellant was connected with a duty counsel who apparently advised him not to sign anything. He complained of nausea and wanting to “puke,” and the officers opened the rear door of the cruiser and suggested that he put his finger down his throat. He did this with success and the resulting vomitus smelled of alcohol, according to the officers.
PC Coysh indicated that the Appellant then said he was claustrophobic and couldn’t breathe, and needed his puffer, which was in his car that had already been towed away. An EMS ambulance was called to assess the situation. Vital signs were checked. No oxygen was offered, no Ventolin treatment was needed and the paramedics advised that he could be on his way. They asked him to sign a waiver, but he refused as his lawyer had told him not to sign anything. Thus, he was taken to a nearby ER (emergency room). PC Coysh accompanied him in the ambulance because he was still cuffed and under arrest.
No treatment was offered in the ambulance by way of respiratory distress. Ten minutes after arriving at the ER, PC Coysh noted that the Appellant was standing in the parking lot, smoking.
The medical evidence in support of the Appellant is in a form filled out by Dr. S.F., who has been his family doctor for 9 years, 7 months. Her note describes the Appellant as a heavy smoker (“pack a day”) who requires “puffers to be able to breathe properly” for chronic bronchitis and “smoker’s cough”.
Her note has a number of inconsistencies with the Appellant’s evidence. She states that her patient is “only an occasional drinker” and further, that he “never drives after alcohol”. But the Appellant told the Tribunal that he doesn’t drink alcohol because his religion is orthodox.
Dr. S.F. wrote that “because of his chronic bronchitis he was unable to breathe long enough to perform the test,” and that “police also supposed to allow him to get his puffer from his car or to perform a blood test at that time to prove his soberty” [sic]. But PC Coysh’s notes, as confirmed in her credible testimony, indicate that the Appellant was arrested at 0248 hours after failing to produce a breath sample. PC Verreault, a coach officer for PC Coysh, testified that the Appellant did not ask to get his puffer until over an hour later, at 0352 hours. The puffer was in his car which had been towed by that point.
Dr. S.F. writes “chest x-ray is pending”. That is the extent of investigation for the Appellant’s chest disease at this time.
APPLICATION OF THE LAW TO FACTS
The Registrar’s Agent submits that the Appellant’s doctor is functioning as a mere advocate for the Appellant, and there is little medical evidence to support the Appellant’s case.
The Tribunal finds that the medical evidence is very weak in this case. The extent of the Appellant’s “bronchitis” is unknown. There is not enough evidence to prove that the Appellant was unable to provide a proper breath sample for a medical reason. The Appellant confirmed that he carries Ventolin in his car and that he has a second orange-coloured inhaler for periodic use. He did not inform the police officers about requiring Ventolin while he was trying unsuccessfully to perform the breath test. Furthermore, he did not ask for his puffer until an hour after his arrest for failing or refusing to comply with the breath test demand.
The police did not observe the Appellant to be in any difficulty breathing, nor did the EMS staff in the ambulance. EMS did not offer any treatment for respiratory distress and took him to the ER because he refused to sign a waiver. The Appellant did not dispute the observation that he was seen outside the ER, smoking, soon after he was transported by ambulance for assessment of his respiratory distress.
DECISION
Upon the application by the Appellant to appeal the suspension order of the Registrar dated July 6, 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
Garry Fisher, M.D., Member
RELEASED: August 18, 2015