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76-year-old with breathing problems has car impounded for failing to perform breathalyzer test

WATCH: A Vancouver Island senior is speaking out after she failed a breathalyzer test because of a medical condition that prevents her from exhaling hard enough the register on the device. Richard Zussman reports.

A Vancouver Island woman says she has had her car impounded, lost her licence and been required to pay thousands of dollars in penalties because of her medical condition.

Norma McLeod was pulled over just after 10 a.m. on February 14. McLeod says the officer told her it was a random roadside test for impaired driving.

The 76-year-old has a medical appliance on the roof of her mouth and chronic obstructive pulmonary disease (COPD), a respiratory condition. She was asked by the police officer to take a deep breath but she wasn’t able to gather enough breath to trigger the breathalyzer.

“I started to feel a little light-headed, a little dizzy. I could feel myself starting to panic,” McLeod said.

“I took the deepest breath I could the first time and he kept saying ‘Go, go, go,’ and I just couldn’t do it anymore. The next two times I just puffed and blew.”

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McLeod immediately had her car impounded and has lost her licence until May 14 at the earliest. Before she gets her licence back she must pay for and take a provincially mandated course.

Only after the ordeal did McLeod realize she had forgotten to tell the officer she had COPD.

“I forgot. There was so much going on. I was just trying to blow,” McLeod said.

McLeod also received a letter from her doctor as part of the appeal process. Her doctor told her there was “no way” she could blow given her medical condition.

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But none of this was enough to satisfy the province’s appeals process. In an appeal notice dated February 28, the adjudicator says McLeod has not done enough to prove she did everything possible to blow hard enough to make the breathalyzer work.

“As a result of my findings, your driving prohibition and corresponding vehicle impoundment remains in effect,” the appeal notice reads.

“You have not satisfied me that you had a reasonable excuse to fail or refuse to comply. I find it more likely than not that your inability to provide a breath sample was due to your conduct and not your medical condition.”

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The appeal cost McLeod $100, removing the car from the impound lot was around $900, the mandatory responsible driving program is around $900, plus a $270 fee to get her licence back.

READ MORE: Civil rights advocates question Canada’s new impaired driving law — but feds say don’t worry

“It’s a pretty hefty toll for when I can’t breathe properly,” McLeod said.

Lawyer Kyla Lee says the roadside impairment tests are not fair for people with breathing conditions. Lee also says a better job needs to done to provide alternatives for people with health conditions.

“I don’t think what happened here is fair. I think the law needs to be amended to find a more robust way of allowing people that have legitimate medical issues that they weren’t able to blow and it was beyond their control.”

The other issue is the breathalyzer itself. Solicitor General Mike Farnworth says the province is looking into how law enforcement could use new technology to make it easier for people with breathing issues to use the breathalyzer.

“When it comes to technology for alcohol or drug impairment there is a lot of work underway in this entire field,” Farnworth said.