Licence Tribunal
Tribunal d'appel en matière de permis
FILE: 10463/ADLS
CASE NAME: 10463 v. Registrar of Motor Vehicles
Appeal under Section 50.1 of the Highway Traffic Act from a Suspension under Section 48.3(2) of that Act – 90-Day Administrative Driver’s Licence Suspension
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn, Member
APPEARANCES:
For the Appellants: Self-represented
For the Respondent: Kyle Biel, Agent
Heard by teleconference: October 19, 2016
REASONS FOR DECISION
A hearing was held on October 19, 2016, 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 CONFIRMS the suspension imposed under section 48.3 of the HTA for the following reasons.
OVERVIEW
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 September 12, 2016. The appeal was received on September 22, 2016
The Tribunal finds that the diagnosis of bronchitis made by the Appellant’s physician and the results of his examination on September 15, 2016 did not prove that there was a medical reason for the Appellant being unable to comply with the demand made on September 12, 2016 under section 254 of the Criminal Code (Canada).
In this case, there was an administrative driver’s licence suspension for 90 days under section 48.3 of the HTA, after a police officer decided that the Appellant had failed or refused to comply with a demand under section 254 of the Criminal Code to provide a breath sample or perform a test for the purpose of determining blood alcohol concentration.
FACTS
Evidence by the Appellant
The Appellant is a sales representative for an automobile company. On September 12, 2016 at 9:30 p.m., he was with his girlfriend and a visiting cousin when they left a restaurant where they had dinner and shared a bottle of red wine.
He acknowledged that he was the driver identified in the arrest. His cousin was in the front passenger seat and his girlfriend sat in the rear. He decided to impress his cousin with the speed capability of the car he was driving and proceeded at approximately 75 km/h after stopping at a red light. He observed a police car with flashing lights behind him and continued for a brief period before stopping. The officer identified himself as Constable Bacon with Halton Police Service.
He apologized to the police officer for the delay in stopping. When asked by Constable Bacon if he had been drinking, he stated that he had one glass of wine during dinner at the restaurant. Constable Bacon informed him that he had reasons to demand a roadside breath sample, and he requested an officer from his station to attend with an alcohol detection device.
After approximately 15 minutes, two officers, including one sergeant, attended at the scene with the device. Constable Bacon proceeded to explain to the Appellant the process of breath testing, and performed a trial test himself to ensure that the device was functioning correctly. Then the constable stationed himself in front of the Appellant and held the device to the Appellant’s mouth.
The Appellant attempted to perform the test three times with no signal before the device was reset. Constable Bacon explained the consequences of failing to provide an adequate sample and requested that he blow stronger and longer for another three attempts.
After failing six attempts, Constable Bacon charged the Appellant under section 254 of the Criminal Code, and placed him in the rear seat of his police vehicle. The Appellant told Constable Bacon that he tried his best to comply, and requested another three attempts, and his request was refused. He also stated that he told the officer that he did not realize the consequence of failing.
Three days after his arrest, the Appellant visited Dr. D., and was diagnosed with bronchitis. The Supporting Medical Information provide by Dr. D. states as follows:
Details and diagnosis of patient’s condition related to this appeal:
Bronchitis Acute with history of prior Bronchitis
Shortness of breath. Wheezing. Infected throat
Inability to exhale with force due to inflammation of airways causing them to narrow and secrete thick mucus which clogged the small airways, resulting in wheezing and shortness of breath. Systems of Bronchitis can onset (sic) prior to diagnosis.
Bronchitis diagnosis September 15, 2016
Previous Bronchitis Diagnosis within medical record.
Type of measurements of recent tests taken including dates:
Pulmonary function tests with stethoscope (sic)- wheezing bilateral
Visual examination of throad (sic)-infected
Tympanic thermoter (sic) - 36.6 after Tylenol 1 hr prior to reading
Medications prescribed:
Biaxin 500 mg 1 tablet 2 times daily for 7 days (antibiotic)
Koffex DM 15 mg/5 ml 10 ml 2 times daily for 10 days (cough suppressant)
Ventolin HFA 100 mcg 2 inhalations every 4-6 hours PRN (bronchodilator)
Relevant details of last visit, including date of patient’s last visit:
New patient recently moved to area
Medical record on file
How long has the applicant been your patient?
- 1 month
Signed by Dr. D., Family Physician, on September 16, 2016
Under cross-examination, the Appellant stated that he did not contact his previous family physician of several years following the suspension because he had moved following marital separation and could not be seen by this previous physician for a couple of weeks. Dr. D. had not seen him before this visit on September 15, 2016. He stated that the September 16 date signed by Dr. D. was the day after he was seen by him, and the doctor’s note that he had been his physician for one month was not correct.
The Appellant stated that he spoke to his lawyer on September 13 and was not feeling well on September 14. He had a low grade fever with shivers, and was tired on the weekend prior to September 12, but that he felt well enough to work during the day of September 12 from 8:30 a.m. to 5 p.m., but left earlier than usual in order to pick up his two sons. He felt well enough to drive to and from the restaurant for dinner. He did not have a drink before leaving for the dinner.
He stated that he had no previous experience with the breathalyzer test. He was not able to exhale strongly enough due to mucus, and this episode of bronchitis was more severe than past episodes.
He stated that he is a non-smoker and has no allergies. He has never undergone a test of his breathing capacity by spirometry or pulmonary function test. These are frequently used tools for measuring the respiratory exhaling function.
The Appellant called two witnesses. Ms. B. is the Appellant’s girlfriend, and confirmed the Appellant’s testimony about the events that evening. She said that the Appellant was cooperative and friendly after being stopped by the police. She witnessed, from a distance of about two metres, the six attempts by the Appellant to provide a breath sample. She did not feel that he was impaired and she noted that one of the other two officers present remarked that he did not appear to be drunk.
Mr. B. resides in the U.S. and is the Appellant’s cousin. His testimony was also consistent with the Appellant and his girlfriend’s testimony. He observed the Appellant’s six failed attempts to provide a breath sample and he believed that the attempts were valid. He believed that it would take three to four glasses of wine to be impaired. They did not have a drink before leaving for the restaurant.
Evidence for the Registrar
Constable Bacon has been with the Halton Police Service since 2009. He was permitted by the Tribunal to refer to his written notes surrounding the event.
He stated that he was on duty in a marked car on September 12, 2016. At 9:27 p.m., he observed a vehicle driving at a high speed. After stopping the vehicle and approaching the driver, he detected the odour of alcohol. The driver stated that he had one glass of wine at dinner at a restaurant with his cousin and girlfriend. The driver identified himself and apologized for not coming to a stop when he first observed the emergency lights. He indicated that he was driving a company car. The driver was cooperative throughout the event.
Constable Bacon stated that he was qualified to administer a demand for a breath test under the Criminal Code (Canada). He issued a demand for a breath sample and contacted his station to request an alcohol breathalyzer, which was delivered at 9:37 p.m. He tested the device and explained the process to the Appellant, who stated that he understood. The first three attempts showed “FLO” indicating that the device did not receive enough air. There was no “humming” sound that should be emitted by the device if used correctly. He explained to the Appellant that the tube must be surrounded by the lips to make a seal and a stronger and longer blow must be applied.
He applied a new tube and explained that the consequence of failing to provide a sufficient sample would amount to a refusal under the law. The Appellant stated that he understood. He held the device to the Appellant’s mouth. The device again showed “FLO” on each attempt following a short blow, indicating a failed attempt.
After the sixth attempt, he arrested the Appellant and advised him of his right to contact a lawyer, at 9:42 p.m. The Appellant stated that he understood. He placed him in the rear of his cruiser without cuffs. The Appellant asked if he could try again and the officer refused. The Appellant gave the name of his lawyer but he was unable to contact him.
He completed the necessary documentation, and as there were no safety issues, he released the Appellant at the scene.
Constable Bacon testified that he did not observe the Appellant to have shortness of breath, coughing or wheezing, and he did not volunteer any medical problem while performing the attempts to blow.
Under cross-examination, the Appellant asked Constable Bacon if he observed any signs of impairment. Constable Bacon stated that he did not observe any physical signs of impairment such as wobbling, slurred speech, dilated pupils, and he agreed that the Appellant was cooperative and polite as well as apologetic throughout.
When asked by the Appellant if the second series of attempts were longer, the officer stated that there was no signal from the device to indicate success and that the attempts were too short and not enough air was blown. The device indicated “FLO,” indicating insufficient air was delivered during attempts #4, #5 and #6.
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.
Submissions by the parties
The Appellant submitted that the medical evidence was sufficient to establish that he was unable to blow into the device on demand.
He submitted that the symptoms of bronchitis include shortness of breath, wheezing and the inability to exhale with force due to inflammation of the airways. He had felt symptoms the evening before the event but did not believe that he had bronchitis, which he submitted would impair his ability to exhale with sufficient force and did not relate this to the police officer.
Although the Appellant raised the issue that he needs to be able to drive his children, and also testified that he had no drinking problem, the Tribunal notes that these are not relevant to the single issue that the Tribunal must decide in this appeal – which is whether there was a medical reason that made the Appellant unable to comply with the breath sample demand.
Mr. Biel, on behalf of the Registrar, submitted that the evidence by Constable Bacon is that he did not observe symptoms of respiratory illness, such as shortness of breath, wheezing or cough, even though the Appellant and Constable Bacon were close to each other during the breath tests. The Appellant did not at any stage tell the officer that he had a medical condition. If he had such symptoms at the time of this roadside stop, it would follow that he would inform the Constable.
Constable Bacon’s evidence was that the Appellant did not seal the device tube with his lips during the attempts. Mr. Biel submitted that the Appellant panicked because he had consumed alcohol at the restaurant and that this state of panic continued during the six failed attempts.
The Registrar submitted that the medical evidence did not indicate any acceptable measurement of the Appellant’s breathing capacity. The doctor saw the Appellant for the first time three days following the event. There is no indication about how his diagnosis would have caused the Appellant to be unable to exhale with sufficient force three days earlier, when no symptoms of bronchitis were brought to the attention of the police constable whose evidence was that no signs of bronchitis were apparent during the attempts to provide a breath sample.
The doctor claimed that he performed a pulmonary function test with his stethoscope, which the Registrar submits is not a recognized instrument for measuring pulmonary function. The diagnosis of bronchitis by the doctor does not by itself constitute the loss of force required to perform the test. The presence of a throat infection would not affect the ability to perform a forced expiration.
APPLICATION OF THE LAW TO FACTS
The Tribunal has carefully reviewed the evidence and submissions of the parties. The onus of proof is on the Appellant to establish that he was unable to comply with the breath demand for a medical reason.
The Appellant’s testimony and his medical evidence is that he was unable to comply with the breath sample demand because of his bronchitis.
The evidence by the police constable is that he did not observe any signs or symptoms that supported the Appellant’s claim that he suffered from a bronchial condition that prevented him from complying with the demand. In the circumstances of this case, the physician’s diagnosis of bronchitis three days later, when considered together with the officer’s testimony, is not enough to establish that the Appellant was medically unable to blow properly into the device.
The “pulmonary function test” that the physician performed with a stethoscope on September 15, 2016, is not sufficient to reliably show the forced pulmonary expiratory volume. This exhalation test is an important element of the standard pulmonary function test which is normally performed by specialty clinics for the diagnosis of chronic respiratory conditions, and the doctor in his report did not indicate that the Appellant had a chronic respiratory condition that was investigated by a standard pulmonary function test (PFT).
This medical report is not sufficient to prove that the Appellant had bronchitis that prevented him from providing a forced expiration on any of the six attempts allowed by the police on September 12, 2016.
The Tribunal notes that it received post-hearing submissions that were permitted regarding one aspect of Constable Bacon’s testimony. There was a dispute about whether the Appellant indicated at the end of this incident, after he had been arrested already, that he was fearful of blowing too hard into the instrument because he was afraid that the readings would register too high. The Appellant denies making a statement like this, and points out that the officer’s notes did not refer to such a statement.
The Tribunal finds that the key evidence in this appeal is the medical evidence, and it is not necessary to determine what the Appellant may have actually said or what may have caused the officer to believe, correctly or not, that the Appellant may have been afraid of the results on the device. The Tribunal’s dismissal of this appeal is not based upon a finding that the Appellant deliberately failed to blow properly into the device. The only question for the Tribunal is whether the Appellant failed or refused to comply with the demand because he was unable to do so for a medical reason. The evidence provided by the Appellant did not prove a medical reason for his failure to blow properly into the device.
DECISION
Upon the appeal of the licence suspension dated September 12, 2016 pursuant to section 48.3 of the HTA, and having considered the evidence and 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., Member
RELEASED: November 2, 2016