Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10400/ADLS
CASE NAME: 10400 v. Registrar of Motor Vehicles
Appeal under Section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 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: Dr. Katherine Whitehead
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle Biel, Agent
Heard by teleconference: September 13, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on September 13, 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.
BACKGROUND
The Appellant filed a Notice of Appeal under section 50.1 of the HTA, from the order of the Registrar of Motor Vehicles (the "Registrar") dated August 7, 2016.
Both parties at the hearing agreed to the following facts.
The Appellant was involved in a traffic accident on August 7, 2016. Officers J and D, and Sergeant (“Sgt.”) D attended the scene and the Appellant was taken by police to the emergency department for medical assessment.
In the emergency department, Officer P attempted to administer the Intoxilizer test for the purpose of obtaining a breath alcohol reading from the Appellant.
Ultimately, a sufficient sample could not be obtained, and the Appellant was charged with failure to provide a breath sample and received an automatic 90-day suspension of his driver’s licence under section 48.3 of the HTA.
The Appellant is appealing under subsection 50.1(1) and (2) of the HTA on the ground that he failed or refused 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.
The hearing was lengthy, involving testimony and written records from multiple witnesses, and many details were presented by both parties. The Tribunal’s reasons will focus on those facts that are relevant to the specific appeal before it.
FACTS
For the Appellant
The Appellant’s case is centred around his assertion that he was unable to understand the demand to provide a breath sample when requested to do so by Officer P. He asserted that his inability to provide the breath sample was not due to a refusal by a mentally competent person, but rather he was unable to understand the requirements due to his mental state at the time that the test was administered.
During the hearing, the Appellant told the Tribunal: “I didn’t understand how to blow into the device.” The Appellant described his recollection of his mental state on August 7, 2016 as being “like a dream” and that “the chemistry in my brain was off”. The Appellant was unable to recall the specific details of the events of August 7, 2016, but rather told the Tribunal about his general impression of his experience. His overall summary was that he was confused, disoriented, and not himself.
The Appellant stated that he suffers from Post-Traumatic Stress Disorder (PTSD) and that he had been experiencing a flashback at the time of the breath demand.
He stated that he was also experiencing adverse effects secondary to withdrawal from the anti-depressant Duloxetine that he had abruptly stopped on August 5, 2016 due to perceived side effects. The Appellant told the Tribunal that after stopping his Duloxetine, he started experiencing: “complete loss of touch with reality, suicidal thoughts, paranoia, and loss of memory.”
The Appellant submitted a pharmacy print-out about Duloxetine and drew the Tribunal’s attention to the fact that all of these symptoms are listed as possible side effects of Duloxetine. The Tribunal notes that suicidal thoughts and mood/other mental changes are noted as side effects on the print-out submitted.
The Appellant also stated that he was intoxicated at the time of the arrest.
The Appellant said that the police reports and testimony confirm that he was in an altered mental state at the time of his arrest and hospital visit. He noted that the police, in their written reports and oral testimony, found his mood to be labile – that is, uncontrolled and unstable. He alternated between being agitated and cooperative. He was one moment crying and the next, giggling. There were times that he was noted to be disoriented (for example, he had to be reminded where he was) and confused (he made statements to officers that made no sense).
He argued that the three factors of 1) PTSD, 2) Anti-depressant medication withdrawal, and 3) intoxication, led to him being unable to understand the breath sample demand. He therefore feels he was medically unable to comply with the demand and thus should be exempt from the automatic suspension of his licence.
The Appellant submitted a letter from his physician for consideration. The letter stated that the Appellant suffers from PTSD and that he was in the process of ceasing his antidepressants. The physician wrote: “I believe strongly that the combination of these 3 factors (PTSD, medication cessation, and intoxication) made him unable to understand the breath demand.”
This physician was not present at the time of the breath request. The letter was based on a later visit to the physician.
For the Registrar
The Registrar called Officer P and Sgt. D to testify. Both officers referred to their notes of August 7, 2016 and both confirmed that they had an independent recollection of the events of the day.
Each officer reviewed their notes from start to finish of the time leading up to and including the point that the breath test was attempted. This included details of the Appellant’s behaviour at the roadside, in the police car en route to the hospital, and while waiting to be assessed by the health care team.
The Registrar also submitted the written notes of Officers D and J but they did not testify at the hearing.
The facts outlined below are a summary of the information presented in sworn oral testimony from Officer P and Sgt. D, and the written logs from Officers D, J, P, and Sgt. D. The Tribunal found that the facts were consistently reported by all officers. There did not seem to be any substantive differences in the independent reports of the officers of the events of August 7, 2016.
The Tribunal will focus on facts presented in the time immediately surrounding the administration of the breath test as those are the facts that it will rely upon in these reasons. Approximately two and a half hours passed between the officers attending at the roadside and the breath demand to the Appellant. The Tribunal focuses on those facts that speak directly to the Appellant’s mental state and ability to understand the breath demand at the time of and immediately preceding the demand.
Approximately 20 minutes prior to the breath demand, the Appellant spoke to his lawyer at the Appellant’s request. The arresting officers arranged for an OPP-appointed counsel to speak to the Appellant, because the Appellant was an OPP officer. He spoke to this lawyer on the phone out of earshot (but in sight of) the accompanying officers. After that phone call, he was asked if he was satisfied with his lawyer and he said that he was.
After he was done speaking to his lawyer, Officer P completed the set-up of the Intoxilizer. The Appellant became agitated when the Intoxilizer was being set up.
When Officer P explained the breath test procedure to the Appellant, he said that he already knew because he was a breath tech.
When he was asked to provide the breath sample, the Appellant became agitated. He accused Officer P of manipulating the machine. He said he did not like the way she was holding the breath tube and so would not provide the sample. The Appellant said that he wanted to hold the breath tube and that he wanted to be able to see the display screen while he was providing his sample. Officer P said that she eventually let him hold the tube and see the screen even though that is not what is normally done. She said that she told him to “do whatever he wanted” as long as he provided the sample.
At that point, the Appellant took a few weak breaths. Officer P said that she noticed that the Appellant’s blow would get weaker as the display numbers got higher. The Appellant was reminded by the police officers that they were all breath techs in the room and that: “we all know what a proper sample is, we have all seen the games played instead of a proper sample” (notes of Sgt. D).
Officer P and Sgt. D reminded him that he had spoken to the lawyer and was given advice. He was advised that he was under no threat or pressure to provide a sample or not, that the officers had no influence in the matter, and that he was completely free to choose to give a sample or not.
The Appellant agreed and Sgt. D noted that the Appellant said that he knows all that. The Appellant was reminded by both officers that charge of refusal carries the same consequence as a failing test. The Appellant said he knew that, and that his decision was to refuse. Specifically he said: “Put me down as refuse”. The Appellant then seemed to calm down and apologized to officers for his behaviour.
Officer P filled out the OPP Alcohol Influence report while administering the breath test. The Tribunal notes the following information from the report:
-Beside “Rights understood?” she checked “Yes”.
-Beside “Demand understood?” she checked “Yes”
-Beside “Are you ill or sick?” she checked “Yes” as the Appellant’s response
-Beside “With what?” she wrote “accused didn’t answer” and in a lower section “none of your business”.
-In the comment section Officer P wrote:
“Accused in an upset very emotional state, sometimes laughing, sometimes crying, challenges whether he’s under arrest, making comments like “you’ll never understand until this happens to you,” “ this is so fucked up,” “ I just want to go home”
-In the section on “refusal”:
Beside “Appeared to understand test required?” She checked, “Yes”
There is a check beside “Demand explained and accused aware of consequences of refusal”
Beside “Reason for refusal” she checked “none given”.
Beside “Reason cannot provide breath sample,” she wrote “am not medically able to”.
Beside “Demand understood,” she wrote “yes”.
During the hearing, Mr. Biel asked Officer P if there was any indication that the Appellant didn’t understand the request, and Officer P responded that his opinion was that the Appellant understood.
During the hearing, Mr. Biel asked the Appellant multiple specific questions about the breath sample attempt and the events surrounding the breath test, but in each case the Appellant was unable to remember the details.
The Respondent’s position was that the Appellant’s behaviour was not consistent with someone who was unable to comply with the breath demand, but rather that the Appellant chose not to provide one.
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 appeals of 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 states under section 50.1(4):
The Tribunal may confirm the suspension or may order that the suspension be set aside.
The onus is on the Appellant to prove his case.
APPLICATION OF THE LAW TO THE FACTS
The Tribunal finds that the Appellant failed to provide sufficient evidence that he was medically unable to provide a breath sample.
The Tribunal accepts that the Appellant suffers from PTSD and was withdrawing from antidepressant medication at the time of his arrest. These facts are confirmed by his physician. His physician also wrote that “I believe strongly that the combination of these 3 factors (PTSD, medication cessation, and intoxication) made him unable to understand the breath demand.”
The Tribunal finds that this opinion of the Appellant’s physician should not be seen as being conclusive of this situation. It must be considered together with the other evidence presented at the hearing, and it must be noted that this physician had to rely on the report of the Appellant regarding how these three factors may have affected him at the scene of the breath sample demand. Since the Appellant told the Tribunal that he was unable to recall many of the details of the time surrounding his breath demand, it is unlikely that the Appellant’s physician had enough reliable information upon which to form an informed opinion about whether the Appellant was medically able to comply with the breath sample demand.
During the hearing, there was discussion of the Appellant’s mental state in the hours between his apprehension at the roadside and the breath test administration. The details of the Appellant’s mental state and behaviour at this earlier time may have some relevance to show how he was still affected at the time he was asked to provide the breath sample, but the Tribunal gives little weight to this evidence in this situation when there is better and more relevant evidence about his behaviour during the relevant time.
Since the Appellant cannot remember the specific details of his experience surrounding the breath demand, the Tribunal must primarily rely on the evidence of the two officers present who testified about the events at that time. The Tribunal found the written and verbal testimony of the officers to be credible, reliable and consistent. The Tribunal notes in particular the following facts from the officer’s account of the events on August 7, 2016:
-The Appellant was aware enough of his situation to seek and receive advice from a lawyer.
-The Appellant was able to identify himself as a breath tech and identify that as a reason why he already understood the details of the test.
-The Appellant was able to identify the components of the Intoxilizer machine, including the breathing tube and the numerical display.
-The Appellant was oriented enough to the machine to know where the result was being reported.
-The Appellant was observed to slow his breathing when the numbers on the numerical display started increasing, implying an understanding of the measurement and the impact of his breathing on that measurement.
-The assessment of the officers present was that the Appellant understood the breath demand.
-When the Appellant was confronted with the choice to provide a sample or refuse he said “put me down as refuse”. This implies not only an understanding of the test but an understanding of the report form and the option to refuse.
-Officer P’s assessment was that the Appellant understood the consequence of that refusal.
Based on this evidence, the Tribunal finds that the Appellant, at the time of the breath demand: (1) understood what was being asked; (2) understood how to use the equipment provided; (3) was offered an opportunity to repeat the test; (4) declined to repeat the test; and (5) clearly communicated his refusal to do so; and (6) understood the consequence of that refusal.
The Appellant’s case was built upon the combination of his PTSD, medication withdrawal and intoxication causing him to be in a mental state that made him unable to understand the instructions and demands being made upon him to provide the breath sample. The Tribunal finds that the evidence does not support a finding that the Appellant was in this kind of mental state at the time of the breath demand. The Tribunal finds that the Appellant has failed to prove that his failure or refusal to comply with the breath demand was because he was unable to do so for a medical reason.
DECISION
Upon the Appellant’s appeal of the licence suspension effective August 7, 2016 pursuant to section 48.3 of the HTA, and having considered the documents filed, the evidence from the parties and the submissions of the Registrar and of the Appellant:
IT IS THE DECISION OF THE TRIBUNAL pursuant to the authority vested in it under section 50.1(4) of the Act that the suspension be confirmed.
LICENCE APPEAL TRIBUNAL
Katherine Whitehead, M.D.
Member
RELEASED: October 19, 2016