Facts: Just past midnight the driver, KS and her admittedly drunk passenger were stopped at a police sobriety check roadblock. An odour of liquor was determined to come from the driver who was polite but (initially) evasive. KS first denied consumption and later admitted to having consumed some liquor a couple hours earlier. A legal demand was made for breath samples into an ASD. Thereafter there was 8 minutes or interaction between KS and the police officer before the police determined a refusal. The police officer indicated in his report that during this time KS “would place her lips on the device, make a tight seal on the mouth piece and then make it appear that she was blowing” but did not provide enough air into the ASD to produce readings. The police officer indicated that KS was instructed numerous times how to provide a proper sample but would only blow faintly on repeated occasions. He indicated that the driver KS advised him that “she had asthma, however she was not short of breath and able to carry on a normal conversation”. The officer’s report suggested that the driver was pretending to have asthma and using this as an excuse and feigning her attempts to blow. The officer therefore indicated that she had “unequivocally refused” to provide a sample. KS provided an Affidavit on the IRP appeal wherein she indicated that she had suffered from an anxiety disorder for years, was stressed by the officer yelling at her and mocking her and became anxious. For weeks prior she had been suffering from the flu where the symptoms were respiratory causing some shortness of breath. She was under medical investigation (being assessed but not yet diagnosed) for an asthma-like condition as a result of this longstanding flu. On her very last (third) attempt to provide samples she was sobbing and anxious and when the officer put the ASD up to her mouth she was, as a result, exhaling and could not catch her breath. The officer deemed a refusal at that time. At the IRP appeal an KS’s Affidavit, a statement from her drunk passenger, a statement from a Registered Respiratory Therapist Counsel, and a ASD forensic expert report from Nizar Shajani were all produced. Mr. Shajani’s report indicated that “people suffering from respiratory conditions (such as asthmatics) can have difficulty in supplying a valid test” into an ASD. Counsel Jamie Butler, argued that though there was evidence that the driver had previously consumed some alcohol there was “no refusal” in these unique circumstances and that a combination of “anxiety and an asthma-like condition” prevented proper samples from being taken. An additional argument was developed that KS did not refuse on the last attempt but was merely sobbing, crying, exhaling and physically out of breath.
Decision: “When considering the evidence before me, I find that you did not fail or refuse to comply with the demand” Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the RSBC. (October 2014)
