RSBC v. PB – IRP WRITTEN APPEAL – SUCCESSFUL – DRIVER GIVEN 8 ATTEMPTS TO PROVIDE A VALID BREATH SAMPLE INTO AN ASD AFTER WHICH OFFICER DEEMED A REFUSAL OF ASD – DRIVER SUFFERED FROM GENERAL ANXIETY DISORDER CONFIRMED BY PHYSICIAN AND WAS SUFFERING FROM A PANIC ATTACK AND SHORTNESS OF BREATH AT TIME OF ASD TESTING – NO REFUSAL FOUND
Facts: On March 27, 2014 at 1:50 am the driver was found to have swerved on the roadway and was pulled over by the police. Officer noted a driver and passenger present in the vehicle with a smell of alcohol on the driver’s breath. Driver denied consumption of alcohol. Officer demands a sample of breath and provides driver with ample opportunity to provide a valid sample into an AS. Officer filed a sworn report that failed to indicate the status messages produced by the ASD instrument after each attempt. The officer’s sworn report indicated that the driver was attempting to defeat the ASD device by at times blowing around the mouthpiece and at other times while driver produced airflow it was not sufficient to engage the ASD to produce a valid reading. Driver issued a Notice of Driving Prohibition for 90 days and files a written appeal. Driver given 4 days to file her written submission. Driver eventually hires Jamie Butler to fight the IRP driving prohibition as driver feels unable to prepare her own submission. Within 2 days Jamie Butler accumulated evidence and produced a written submission for this appeal. On this written IRP review there was a written report produced from the driver’s long time family physician which indicated that the driver has suffered a generalized anxiety disorder. There was an Affidavit from the driver that indicated that she was called by her roommate to pick her up from a Pub as she was intoxicated and needed a ride home. She did so and on the way home the roommate mistakenly leaned into the steering wheel causing the vehicle to swerve. Driver indicated that she was only 96 pounds and suffers from extreme anxiety at times and upon being issued a demand for samples and having the officer scream at her she became fearful and suffered a panic attack and shortness of breath. She indicated in her Affidavit that she “earnestly attempted to provide a breath sample on each of the 8 attempts”. A report from a forensic expert was produced that indicated that people of slight frame and body weight who suffer from respiratory symptoms like shortness of breath from anxiety may not be able to successfully produce a proper breath sample. Decision: “I am not satisfied that you refused or failed to comply with an ASD demand”. Driving prohibition revoked, no fine imposed and all towing and storage fees paid for by RSBC. (April 2016)
