Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9758/ADLS
CASE NAME: 9758 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: Kevin Flynn M.D.
APPEARANCES:
For the Appellant: Kristen Netta, Paralegal
For the Respondent: Kyle M. Biel, Agent
Heard in Toronto: September 21, 2015
REASONS FOR DECISION
A hearing was held on September 21, 2015 at Toronto 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 September 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
The Appellant appealed by way of a Notice of Appeal under section 50.1 of the HTA, from the order of the Registrar of Motor Vehicles (the "Registrar") dated July 18, 2015.
The reasons for the appeal set out in the Notice of Appeal are summarized as follows:
The Appellant appealed on the ground that she has a medical condition, asthma, which caused her to be unable to provide a breath sample upon demand by a police officer under section 48.3 of the Act.
She stated that she has a history of asthma, which flares up with stress. Her physician has supported her claim with a statement that her asthma is uncontrolled. She suffers from anxiety which makes it difficult to for her comprehend and comply with instructions under stress and in a language which is not her first language.
After considering the evidence, the Tribunal gives more weight to the police evidence of 12 attempts to comply with a demand under section 48.3 of the Act than that of the Appellant.
Preliminary Matters
At the onset of the hearing, the Tribunal ordered that witnesses, except for the parties, be excluded during the testimony of other witnesses. The witnesses were cautioned not to discuss their evidence with the parties or other witnesses during the period of exclusion of witnesses.
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
Evidence by the Appellant
Under examination by Ms Netta, the Appellant stated that in her occupation as a personal support worker she relies on her car in order to service clients who reside in a widespread area. She stated that on the day in question she was driving fast to a client when she was stopped by police at approximately 7:30 p.m.
She stated that the officer asked if she had consumed alcohol that day and then told her to step out of the car in order to provide a breath sample. She stated that the officer was rude and ‘screaming at her’ because of her language and that she became stressed and began to stutter and had difficulty breathing.
After five attempts to provide a sample of her breath she asked for her puffer from her friend who was a passenger, and was given her Symbicort Turbohaler which she activated and used. She stated that she also asked the officer for her Ventolin inhaler but was refused. She stated that she normally uses the Ventolin as a ‘rescue’ inhaler for asthma attacks and had last used this the previous evening.
She then continued her attempts to comply for another six or seven times. She stated she heard the audio signal once.
She was then arrested and charged with failing to provide a breath sample.
She stated that she was diagnosed with asthma at age five and had lung surgery at age nine in her home country. She sees her family physician every two to four weeks and uses the Symbicort twice daily as a preventative.
Ms Netta referred to the report by the family physician, Dr. K., who has attended the Appellant for five years and last examined her on August 20, 2015.
He stated that the Appellant has a history of asthma for 25 years and had lung resection at age 9. Also, Dr.K.noted that the Appellant stutters under stress and that she has a flare-up of asthma with shortness of breath under stressful conditions.
Ms. Netta also referred to a supporting document by Ms W., a nurse practitioner who has known the Appellant for 8 years.
Ms W. stated:
Due to a long history of uncontrolled asthma even with treatment, the Appellant does not have an adequate expiratory force to complete spirometry studies. Anxiety makes it very difficult to comprehend and carry out instructions especially when given in English which is not for first language. She also has a marked stutter which makes it difficult to communicate in stressful situations.
Spirometry tests in her office on July 22, 2015 indicated poorly controlled asthma.
FVC: 77% of predicted normal FEV1:66% “ FEV1/FVC: 85% “ FEF 25%-45%:42% “ PEFR: 72% “
Mr. Biel referred to a consultation report prepared by Dr. Roger Goldstein, Director, Program in Respiratory Medicine and Professor of Medicine at the University of Toronto.
In his report, Dr. Goldstein stated that he is familiar with the Alcotest used by police. He has tested a number of individuals aged 44-77 in a pulmonary function laboratory. He stated that the vast majority of the tested individuals with an FEV1 of 0.7 are able to provide a satisfactory breath sample.
He studied the results of the spirometry tests provided by Ms W. and stated:
The test provided would not be consistent with being unable to provide a satisfactory breath sample.
Under cross examination by Mr. Biel, the Appellant stated that prior to being stopped by police for speeding on July 18, 2015 she had been to an Indian Festival with a friend for a couple of hours. She did not consume alcohol there.
Regarding her evidence that the officer was “screaming” at her and was rude, she stated she asked for a translator and was told that he understood her and that he would not provide a translator.
During her first 5-7 attempts to provide a breath sample, she was given her Symbicort inhaler by her friend in the car. She stated that the police officer would not give her the Ventolin inhaler after she asked.
She asked to be taken to the hospital for a blood test and was refused.
She stated that after the police officer left and her car was towed, she used her Ventolin inhaler. She was picked up by a friend and went to the hospital where she asked for a blood alcohol test and was told that this was not possible.
She stated that when she has an asthma attack, she experiences heavy breathing which is not always obvious and usually has a stutter under stress. On a scale of 10 being the worst attack, she rated the attack on this occasion as 5 to 6.
Evidence by the Respondent
Police Constable Read Holland, Badge 2276, York Regional Police, testified that he is a qualified breath technician, since 2006, and was on duty on the night shift on July 18, 2015.
While on speed enforcement duty, he observed the Appellant’s car driving 88 kmh in a 50 kmh zone.
He stopped the car and informed the driver that she was stopped for speeding. He detected the odour of alcohol from within the vehicle. When asked if she had consumed alcohol that day, stated that she had “some beer”.
He activated the audio/video equipment and issued the demand for a breath sample under section 248.3 of the Highway Traffic Act.
He stated that she understood and that she did not ask for a translator. He asked if she would require a translator for her court appearance and she said “yes”. He denied that he was raising his voice. He acknowledged that the driver told him that she had asthma and when requested he retrieved the Symbicort from her vehicle and allowed her to use it. He denied that she asked for her Ventolin inhaler.
He demonstrated what she had to do in order to provide a satisfactory sample and after the second attempt he advised her of the consequences of failure.
On the third attempt, she blew at the mouthpiece but not when it was sealed in her mouth and there was an audible signal with a message of “blow interrupt”.
After the 7th attempt, he reset the device and after the 11th attempt, he again gave the refusal warning which she stated she understood. She spoke to her friend in her own language and after the final (12th) attempt she was charged. She was upset.
He informed the Tribunal that a copy of the audio/visual record was available to the Appellant. Mr. Biel informed the Tribunal that the recording had not been copied for the hearing.
Under cross examination, Constable Holland confirmed that he was aware that English was not the driver’s first language.
He denied that she asked for medical attention and he stated that he did not observe any evidence of medical distress. He stated that he had no doubt that the driver understood his instructions, but he did recognise that she was nervous. He did inform her that there was no reason to send her to the hospital for a blood test.
APPLICATION OF THE LAW TO FACTS
Ms Netta for the Appellant, relies on the medical report that confirms that the Appellant has a “severe asthma condition” that is not controlled. Her client relies on Symbicort for prevention and Ventolin for relief of her asthma. On request, she was provided with the Symbicort but not the Ventolin.
The Appellant has stated that a recurrence of her asthma is not always apparent to an observer.
The report by Dr. Goldstein compared results performed on an older age group in his studies and did not consider other factors such as stress. He has not seen the Appellant as a patient and has not considered her history of lung surgery at an early age.
The Appellant did use her Ventolin after the police officer had left.
Mr. Biel relies on the twelve failed attempts to provide a satisfactory sample of breath upon issue of a demand under section 48.3 of the Highway Traffic Act. The police officer had reasonable grounds for making the demand, based on the odour of alcohol and the driver’s admitted consumption of ‘some beer’.
The diagnosis of asthma by itself is not a valid reason for refusal. The medical supporting evidence is not conclusive regarding justification of the failed twelve attempts.
There was no change in airflow following the Appellant’s use of the Symbicort inhaler.
The police officer did not observe evidence of a medical condition, including anxiety, that would require transportation to hospital.
Respirometry tests performed in the medical office are useful for monitoring purposes but not as reliable as pulmonary function tests performed in a specialized setting for accurate diagnosis.
The respirometry tests performed at the clinic by the Appellant’s nurse practitioner, four days after the event, when she was not under stress, were not in keeping with the evidence provided by Dr. Goldstein who found that the tests provided by the Appellant would not be consistent with being unable to provide a satisfactory breath sample.
Evidence by the Appellant regarding the interaction with the police officer, the request for the Ventolin, was not consistent with police evidence. The Appellant stated that she retrieved the Symbicort from the car. The police officer testified that he did so. The officer denied that the Appellant asked for her Ventolin.
The Tribunal finds that evidence by the police officer was more credible than that of the Appellant. The Appellant was given twelve opportunities to provide a satisfactory sample of breath on demand by police who had reasonable grounds for issuing a demand under section 48.3 of the Act.
A history of asthma by itself does not justify a refusal to provide a sample of breath for alcohol testing, without a pulmonary function test performed under optimal conditions that confirms inability to meet the requirements for exemption.
The Tribunal recognised that the Appellant exhibited signs of stress during her evidence, although there was no evidence of stutter. The Tribunal compliments the Athe Appellant’s representative for assisting her client during this process.
DECISION
Upon the application by the Appellant to appeal the suspension order of the Registrar dated July 18, 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
Kevin Flynn M.D. Presiding Member
RELEASED: October 1, 2015