Victoria senior who failed performing breathalyzer for medical reasons gets prohibition rescinded

A Victoria woman who lost her license and had her car impounded for failing to perform a breathalyzer test because of breathing problems has now had her roadside prohibition rescinded, her lawyer confirms.

Norma McLeod was pulled over just after 10 a.m. on Feb. 14 for what she was told was a random roadside test for impaired driving.

The 76-year-old has a medical appliance on the roof of her mouth and chronic obstructive pulmonary disease (COPD), a respiratory condition. She was asked by the police officer to take a deep breath, but she wasn’t able to gather enough breath to trigger the breathalyzer after nine attempts.

McLeod immediately filed an appeal, which was denied after the adjudicator said McLeod had not done enough to prove she did everything possible to blow hard enough to make the breathalyzer work.

The appeal cost McLeod $100, removing the car from the impound lot was around $850, plus she had to pay a $270 fee to get her licence back. She also had to pay a $500 fine as part of the roadside prohibition.

On Saturday, McLeod’s lawyer Jenn Teryn confirmed the Superintendent of Motor Vehicles had rescinded the roadside prohibition after a rehearing, refunding all of the fees and fines back to McLeod.

“Basically they looked at all of the information and decided, rightly, that she didn’t, in fact, refuse” the officer’s demand to perform the breathalyzer test, Teryn said.

As part of the prohibition, McLeod also had to enroll in the Responsible Driver Program provided by Stroh Health Care, which cost her $930. Teryn said that will also be refunded, minus an unknown “administration fee.”

“From a financial standpoint, she’ll be more or less back to where she started,” Teryn said.

McLeod could not be reached for comment Saturday.

Despite winning back the costs of the roadside prohibition, McLeod is soldiering on with a constitutional challenge against Canada’s impaired driving laws that got her in trouble in the first place.

The laws were changed in 2018 to allow police to pull over anyone and request a breathalyzer without any signs of impairment. The test can be requested within two hours of a driver being on the road, even after someone has returned home and had alcohol to drink.

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Teryn, who took on the constitutional challenge along with her managing partner Jerry Steele, said the laws violate Canadians’ Charter rights, specifically their right to be secure against unreasonable search or seizure and to not be arbitrarily detained or imprisoned.

“Using the logic behind this law, what’s to stop Parliament from legislating that the police can stop any driver for no reason at all?” she asked, pointing to potential random stops and searches for marijuana or other drugs.

“We can’t allow this type of thing to go on unchecked,” she continued. “Police have to work within specific paradigms to ensure that they’re using their enforcement powers in a way that actually serves to protect Canadians, and not intrude on their Charter-protected rights.”

Teryn said the challenge is scheduled to be heard next spring.

Several other B.C. drivers with medical issues like McLeod’s have had similar stories.

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In October 2017, Patty Dowler failed to perform a breathalyzer test when she was pulled over, blaming her failure on her Bell’s palsy that weakened her facial muscles.

Jimmy Forster has launched his own constitutional challenge after his own breathing problems made him unable to perform the test. Steele is representing that case as well.

Canada’s Attorney General David Lametti has said the federal government is testing two new devices that could make it easier for those with health problems to perform the test.

He’s also hinted at potential revisions to the driving laws, but those have not been addressed yet.

—With files from Richard Zussman