COPD, Asthma and the Breathalyzer: What if I can’t blow hard enough?

One of the reasons we despise BC’s Immediate Roadside Prohibition scheme is due to its unfairness. If you have COPD, asthma or any number of other medical conditions and can’t blow hard enough into a breathalyzer, chances are you’ll be lumped in with the drunk drivers since you “refused” to provide a breath sample. In order for an Approved Screening Device to function the airflow and volume must meet certain parameters to trigger an analysis. It can be a big amount of air for those among us who simply can’t exhale very much.

To provide some context, an average person exhales about 500 ml of air per breath. An average adult male vigorously exhaling air can expel about four litres of air in each breath. That’s assuming you’re a fit, healthy adult with no respiratory conditions. Now imagine a scenario where an older woman with a smaller frame, who is perhaps a smoker and has a lung condition, is then required to expel a significant portion of air in a short time, all while under stress. For someone in this situation, they might simply be unable to blow hard enough.

 

COPD-afflicted senior gets IRP despite struggling to breathe while speaking

One case decided in Victoria involved a 68-year-old woman diagnosed with Chronic Obstructive Pulmonary Disease, or COPD, a lung disease that includes chronic bronchitis and emphysema. Her doctor even confirmed that, due to her condition, the senior woman would not even “have enough air to blow up a balloon.” She was given nine attempts at the breathalyzer, but none of the attempts registered as a proper breath sample.

Now consider this: officers demanding breath samples are not required to document any breathing difficulties someone might have. Officers are also not required to ask about medical conditions that would prevent someone from being able to blow hard enough. Unfortunately for the woman, it actually hurt her case that the officer didn’t notice her difficulty, and that she failed to mention her condition at the roadside – even though it was later established that she can run out of breath just from speaking.

The silly thing is that the adjudicator acknowledged all this. Understood that, here was a woman who couldn’t even blow up a balloon, but was given a 90-day IRP for refusing or failing to blow in spite of her medical condition. Guess what the adjudicator said?

“I note (the doctor) speaks to your ability to ‘blow up a balloon’, not your ability to provide a breath sample into an ASD and there is no evidence before me that these require the same capacity of breath…”

Really? It’s confirmed she struggles to breathe. It’s confirmed she has difficulty breathing even from just speaking. It’s confirmed she can’t blow up a balloon. But one of the reasons for upholding her IRP is because the adjudicator wasn’t convinced about the amount of air needed to fill a balloon?

 

“Give me a minute,” says man with chronic asthma

The officer told him he had a “sissy” blow during his first attempt at the breathalyzer. The man, who has suffered from chronic asthma since childhood, responded by saying he couldn’t do that right now, he needed a minute. The officer determined that was as good as “refusing” to provide a breath sample, which means a 90-day IRP. In his hearing, the man provided evidence from his doctor that he needs two inhalers and that it’s “not uncommon” for him to be unable to expel air when he’s stressed or having an asthma attack. Well, it seems adjudicators are not really concerned about all that. The sticking point was how the man said he couldn’t do better than a “sissy blow” because he needed a minute. The court rejected his petition for judicial review, partly because he didn’t explain his condition to the officer at the roadside. Keep in mind, the man may have been having an asthma attack. It’s difficult to expect someone in that situation to give a long-winded explanation to an officer who has already decided your guilt.

Here’s what the court said, in rejecting the man’s petition for judicial review.

“When the petition said words to the effect that he could not provide the sample and there is no evidence of an explanation provided to the police officer, in my view that is some evidence of a refusal. Furthermore, there is the notation of the police officer on the report to the Superintendent of the word ‘refuse.’ It takes very little evidence to tip the balance in favour of declining judicial review and in the circumstances of the case, there is at least some evidence to support the adjudicator’s decision.”

Yup. It sure takes very little evidence to allege someone is driving impaired, but someone with a legitimate reason for being unable to blow hard enough must move mountains to dispute the allegations.

 

Can COPD, asthma or other medical conditions ever help challenge an IRP?

It’s rare. But yes. The reasons are not entirely clear, however. In one documented decision where an IRP was revoked “without reasons,” the differences appear to be how a driver stated specifically that he suffers “from asthma and Moderate Stage 2 COPD.” That worked, somehow. That doesn’t mean it will work in another person’s case. For this reason we prefer to succeed with legal arguments rather than on the basis of facts we must establish at the hearing.

It is frustrating for us and many of our clients why BC’s roadside impaired driving legislation seems to be so inconsistent with the intent of the law. We understand the importance of removing impaired drivers who are a danger to the public from the roads. However, we also understand that someone who suffers a medical condition is going to be less able to provide a sample to a breathalyzer. While medical conditions can prevent drivers from providing a breath sample, it is a difficult defence to raise during the review. It is unfair, and that’s why we keep challenging every aspect of the IRP scheme.

If you were unable to provide a breath sample because of COPD, asthma or another medical condition, call us. We’re lawyers with years of experience challenging BC’s drinking driving legislation, and we would love to examine your case.