Every spring we see an increase in 90-day Immediate Roadside Prohibitions issued based on an allegation of refusing to blow. There are a couple of reasons refusal DUIs go up in spring here in British Columbia. On the one hand more people are getting out to enjoy the weather, doing outdoor activities and the police are waiting. A more prevalent concern, however, is the effect of pollen on the ability to breathe for those of us who suffer from seasonal allergies. Simply put, pollen is the most common asthma and allergy trigger. It can cause shortness of breath in otherwise healthy adults. What some experience as “hay fever” can take away the ability to blow.
Most people who suffer seasonal allergies know the symptoms. Difficulty breathing, a sense that you simply can’t draw in enough air and occasional coughing or wheezing are common. What’s happening is that there is a swelling or narrowing of the throat or the airways to your lungs. The swelling and mucus buildup that accompanies it can result in shortness of breath. Essentially your lungs can’t draw in enough air or hold as much air as an otherwise healthy adult.
In the context of a police investigation using a breathalyzer, such as the Approved Screening Devices that we use in BC, a significant amount of air must pass through the device before it automatically captures a sample of breath to analyze. There are many problems with this for people with seasonal allergies.
First of all, there is no police training whatsoever about this concern. Even though the government scientists know not all people can meet the breath requirements of the devices, the police training material assumes everyone can blow well enough to trigger a sample.
Secondly, we know that emotions can also affect the way people breathe. Stress can trigger asthma symptoms. The rapid breathing that often comes with a stressful situation can narrow the airways even more. This is a particular problem because everyone suffers stress in a police stop and knowing that the issue is breathing usually increases anxiety. Police stops are stressful and if you know you must blow and you know you have a problem with your breathing, often a feedback loop follows where it is impossible to generate enough air flow to meet the demands of the breathalyzer.
Worse yet is that the adjudicator’s at RoadSafetyBC (The Superintendent of Motor Vehicles) rely on the police material and in fact they publish it on their website as a so-called reliable source. This calls into question whether they want to know the truth. The options are that they are hiding this issue from the public and they themselves know the truth (and they don’t want the public to know) or they simply have never been informed of these facts. Either way it does not reflect well on the government office that has the job of adjudicating these matters.
Defending seasonal allergy refusal cases
We wish it was easy to defend an IRP cases, but it’s not. Paul Doroshenko has been defending “refusal” cases for 24 years and in his opinion, it’s harder than ever to defend these cases. Police officers often use stock police reports and because an accused is denied the right to cross examine the officer in IRP cases, one must put forth overwhelming evidence and make the case in law every time. Because the delegate at the Superintendent’s office does not provide revocation reasons, one must consider the facts of the previous successful cases in our office to devise a legal strategy custom tailored for the particular facts.
We have successfully defended thousands of 90-day IRP and in fact, Kyla Lee wrote the only lawyer’s textbook on the subject. Because this is what we do each day, we’re well placed to make the argument each spring that the reason our client was incapable of providing a breath sample to the ASD was seasonal allergies.
If you’ve received an IRP, don’t delay in calling us. There are very short limitations and we need as much time as possible to put together the best defence possible for you. Call us now.