RSBC v. WH – IRP APPEAL SUCCESSFUL – REFUSAL TO PROVIDE SAMPLE – ASTHMA DEFENCE — DRIVER HAS ASTHMA AND CANNOT PROVIDE PROPER ASD BREATH SAMPLES – REASONABLE EXCUSE
Facts: On July 15, 2017 the Driver, WH, was out with his girlfriend, TK, at a function in Richmond. WH had consumed two alcoholic beverages over the course of the night after which WH drove himself and his girlfriend TK downtown Vancouver. On the north side of the Granville Street bridge was a police counterattack roadblock and WH was stopped as a matter of course. When questioned WH lied to the officer and said he had nothing to drink. The officer asked WH to step out of the vehicle and once outside the officer advised WH that he smelled alcohol on WH’s breath. WH then admitted to prior alcohol consumption. The officer made a demand for breath samples and produced an ASD for WH’s sample. WH, a foreign student, was very nervous about this procedure and about his being caught up in a lie. WH suffers from asthma (a respiratory condition that makes it difficult to breathe deeply at times). WH was given three attempts to provide a sample and he blew into the ASD on each occasion but he did not provide a proper sample. Before and during the third attempt WH advised the officer that he had asthma and that he was extremely nervous and that this had activated his asthma condition. The officer said to WH “he had heard that excuse before” and continued to press for samples. WH, who only infrequently had asthmatic episodes (and thus did not have any medication or inhaler) said “I have asthma and cannot even breathe right now”. The officer deemed this a refusal and served WH with a 90 IRP Notice of Driving Prohibition. WH hired Jamie Butler to fight the IRP driving prohibition. Affidavit evidence was produced from both WH and his girlfriend TK supporting WH’s limited alcohol consumption on this night and importantly confirming that WH did indeed have past issues with asthma. No medications or doctor’s reports were filed as the asthmatic condition was transitory and infrequent and WH was not under any doctor’s orders or medication for this condition. Jamie Butler argued that the episodic asthmatic condition brought on by WH’s extreme nervousness prevented the proper sampling from occurring. An expert report from forensic expert Nizar Shajani was filed indicating that “some people with respiratory problems like asthma cannot fulfill the sampling parameters”. Decision: “Did you not fail or refuse to comply with an ASD demand”? You have satisfied me that you did not fail or refuse to comply with the ASD demand”. Result: revocation of driving prohibition – no fines imposed – all towing and storage fees paid by RSBC. (August 2017)
Post-script: This is really a case where WH had a “reasonable excuse” for not providing a breath sample when same was legally demanded of him. The officer should have waited for the asthmatic condition to dissipate and treated WH at face value when informed about the asthmatic condition.
