A 57-year-old Albertan said his asthma prevented him from completing a breathalyzer. His vehicle was confiscated and his driver’s license was suspended for three months. He attempted to prove his innocence by undergoing a blood test within hours of his arrest which showed that his blood alcohol level was below the limit, but failed.
On the night of December 4, 2021, Cheryl Kenworthy did not stop at a blood alcohol test. Police stopped him and asked to provide a breath sample. He said he tried to do it, but, because his asthma had worsened at that time, he could not breathe with the necessary force.
I tried to sit and stand, he explained. I tried everything to make it work. It is impossible to do so.
The Royal Canadian Mounted Police (RCMP) officer recorded his denial. Cheryl Kenworthy said she told him she had an asthma attack and asked to take a blood test to determine her blood alcohol level. The police refused and gave him a ticket for refusing to blow the breathalyzer.
When her car was towed, Cheryl Kenworthy went alone to the hospital for a blood test. The result indicates that his blood alcohol level is below the legal limit.
In January, Cheryl Kenworthy requested a review of her file. He provides his prescription record, blood test results and a doctor’s note to the arbitrator.
The note of Dr. Sarah Corser explains that Cheryl Kenworthy has had asthma for a long time and is attacking. certainly interfere with their ability to provide a breath sample.
In her decision filed in January, the arbitrator held that while the documents prove that Cheryl Kenworthy had a medical condition, they did not show that her symptoms were severe enough to prevent her from successfully providing a sample of breath.
Cheryl Kenworthy, who has not yet been charged with driving disability, said she paid approximately $ 10,000 in fines and legal fees to challenge her sentence. He argues that he will have to spend at least $ 6,000 more before his scheduled judicial review in March 2023.
In the meantime, there is a device installed in his vehicle that requires him to provide a breath sample to unlock it whenever he wants to use it.
Multiple similar cases
Asthma Canada’s President and CEO, Vanessa Foran, said many similar cases were identified in 2019.
Asthma Canada, Canadian Lung Association and Chronic Obstructive Pulmonary Disease Canada (COPD) are seeking clarification from the Attorney General for people with breathing problems.
In fact, court records from the past two years show that other Albertans with asthma were punished for not providing a breath sample. In these cases as well, the arbitrators did not cancel the administrative penalties imposed.
Vanessa Foran added that if asthma, whether mild or moderate, is not controlled or triggered, it can be difficult to breathe and provide a breath sample. Cold air and stress are common triggers.
I think better training for police on how to deal with these situations will be beneficial for them and for people with lung problems. he pointed out.
The spokesman for RCMPTroy Savinkoff, suggests for his part that agents do not receive medical training to detect lung problems.
He added that many people with lung conditions are successful at providing a breath sample. The amount of air needed for the test is not significant, he said.
Alberta Transportation Minister’s press secretary Rob Williams would not comment on a particular case. However, he specified that many studies […] show that only the most debilitating and significant respiratory conditions can prevent an individual from providing a proper breath sample.
He added that the police must follow the Criminal Code of Canada and under the latter, they cannot detain the driver to give him a blood test. Said Rob Williams is likely to be unconstitutional, overstaffed, and overburden the health care system.
There is information from Madeleine Cummings
Source: Radio-Canada
