No driving ban for man who said COVID-19 prevents breathalyzer sample

Feb 24 2022, 9:49 pm

What if a policeman gave you seven shots to blow into a breathalyzer, and you still couldn’t do it due to long-haul COVID-19 complications?

That’s exactly the situation a Vancouver man found himself in on February 11 after he was stopped by police on his way home. 

Peter Ronald Gibson had a malfunctioning tail light, which is why the cops pulled him over. However, he had also been drinking that evening while dining at a restaurant downtown. 

Gibson had COVID-19 in January and was worried he wouldn’t be able to blow into the breathalyzer hard enough for it to register a reading. 

It turns out he was right. Gibson gave the breathalyzer a shot, but it didn’t work, and the officer asked him to try six more times before giving up. 

As a result, he was automatically deemed to have refused to provide a sample. The punishment for that is a 90-day driving ban, but Gibson asked the superintendent of motor vehicles for a review.

An adjudicator halted that review, saying there was no reasonable excuse for Gibson’s conduct.

The back-and-forth only gets worse from there. Gibson swore an affidavit saying he tried his best to provide a sample but couldn’t because he had reduced lung capacity.

He said he was being treated for long-term COVID-19 impacts and had evidence to prove it, including a doctor’s note confirming his condition limited his ability to complete the breathalyzer test.

The doctor’s note from February 23, 2021, says Gibson had “ongoing respiratory symptoms, including shortness of breath on exertion.”

“His physical examination shows evidence of post-viral reactive airways with severe forced expiratory wheeze. He has been given prescriptions for Flovent and Salbutamol inhalers today,” it said.

“This could contribute to his difficulty performing breathalyzer test during recent traffic stop.”

Still frustrated, Gibson went to the BC Supreme Court to review the adjudicator’s decision, saying they didn’t consider his medical evidence while making their decision. That hearing took place on February 25, 2021, with a written decision issued on March 4.

More recently, when Justice Michael Tammen looked at the case for judicial review, they sided with Gibson. 

“He had no ability to respond, either through filing evidence or making submissions, to the critical observations made by the adjudicator,” he said.

“Those observations led collectively to a complete rejection of the petitioner’s position on the only live issue, namely his inability, because of his medical condition, to generate sufficient airflow to permit analysis by the (screening device).”

The police officer that originally stopped Gibson still thinks he wasn’t being honest about his condition.

“Based on a consideration of your evidence, including that you were able to drive your car, attend a meeting, visit with friends and walk home after receiving your IRP, I find it difficult to accept that you were unable to provide the minimum breath flow rate or volume required to trigger the ASD’s ability to capture your breath sample,” she said. 

“You have not satisfied me that you did not fail or refuse to comply with the ASD demand.”

The argument will continue after the case goes back to a Vancouver police superintendent.

She said she reviewed his medical documents and understands he has breathing issues because he had COVID-19, but said his doctor isn’t an expert on how much air it takes to get a breathalyzer result.

He had an excuse, just not a reasonable one, she said.

“In order to accept that your medical condition provided you with a reasonable excuse to not comply with a valid ASD demand, the medical condition must make it either extremely difficult or extremely painful or uncomfortable, or involve some risk to your health,” said the officer.

Tammen disagreed, lifting the driving ban on Gibson and sending his case to the superintendent for another hearing. A new adjudicator will be assigned for it.

“In this case, I place the breach of procedural fairness on the less serious end of the continuum. The breach has caused me to conclude that the petitioner is entitled to a new hearing, but no further remedy is required,” wrote Tammen. 

“Costs are not appropriate. The error made by the adjudicator cannot be said to have been made in bad faith, nor equated with misconduct.”

He took issue with how the officer interpreted the manual, adding it didn’t include minimum breath volume to successfully complete the test.

“In my view, nothing in the legislative scheme permits the adjudicator to assume the role of expert witness,” he said.

In previous years, asthmatics have made similar complaints after being unable to blow into the device.

But clearly, there’s research to be done on how hard you have to blow into a breathalyzer for it to work — and whether having COVID-19 can eliminate your ability to do it at all.

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