Norma McLeod is taking her fight against Canada’s “unfair” roadside impaired driving test to court.
The 76-year-old Victoria woman is working with a team of lawyers to launch a constitutional challenge against a law that allows police to demand a breathalyzer without any signs a driver is impaired.
“I just feel the police have no sympathy for us who have a hard time breathing,” McLeod said.
“I have gotten a lot more confident than I was before. Others have come forward with their problems as well.”
WATCH (April 4, 2019): Senior with chronic lung disease fights DUI charge
McLeod is part of a growing number of British Columbians who have come forward with concerns over the roadside breathalyzer rules.
In October 2017, Patty Dowler dropped off some empty cans at the local beer and wine store before picking up some beer. On her way home she was pulled over.
The officer told her she smelled alcohol on her breath but Dowler is adamant she was not drinking and the smell came from the cans that had been in the hot vehicle. She was then asked to do a breathalyzer.
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“I just didn’t seem to be able to blow enough to make a reading on her instrument. I ended up doing five or six tries and still couldn’t do. I was feeling very stressed and ill and the officer told me she was going to impound my car and take my licence,” Dowler told Global News.
“I realized it was my Bell’s palsy. I am not able to form that seal to do the sobriety test.”
Bell’s palsy is a a medical condition where face muscles are weakened.
In McLeod’s case she was pulled over after leaving a liquor store near her home. She showed no signs of impairment and was pulled over and ordered to conduct a breathalyzer test.
After blowing nine times, she was unable to make the machine register and had her car impounded, her licence revoked and even after a doctor produced a note saying she couldn’t physically breath hard enough to pass the test she failed an appeal.
McLeod survived mouth cancer, wears a mouth implement and has COPD, a respiratory illness.
Lawyers Jerry Steele and Jennifer Teryn from the law firm Jeremy Carr & Associates have now taken on McLeod’s case. They are targeting the rules that changed in 2018 giving police more power to require roadside tests.
“Many people are being caught up in on this without having anything to drink. It clearly is a guilt until proven innocent situation,” Steele said.
“If we were successful and we were able to strike this legislation as unconstitutional it will go back to what it was like before December 2018, which is police needed at least a reasonable suspicion.”
Teryn says McLeod should never have been told she could do her appeal without a lawyer, adding she likely could have won her review case originally if she’d had legal representation.
The law firm is now looking for others who have been punished for failing the test due to medical conditions. Teryn says she is also concerned about predatory police, where officers are targeting elderly citizens who are legally leaving liquor stores early in the morning.
“When you pull people over who have done nothing wrong, no driving behavior, no admission of consumption, no odour of liquor, nothing to indicate they have consumed alcohol within a very lengthy period of time and then you terrorize them to the side of the road because you have the lawful authority to do so,” Teryn said.
“That is the problem.”
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The provincial government is aware of McLeod’s case. Solicitor General Mike Farnworth has asked his staff to look into the issue and whether there can be an alternative test for those with medical conditions.
“If you have a medical condition that doesn’t allow you to use a breathalyzer there should be a way to deal with that,” Farnworth said.
McLeod is hoping to get her licence back soon. Unless the courts rule quickly, she will be required to take a course that everyone who fails a breathalyzer or fails to complete the test is forced to take.
One of the challenges in having her car impounded has been getting around using public transit.
“It is a lot of walking. I am huffing and puffing when I am walking to the bus. And I can’t take my dog with me on the bus. I normally take him in the car I miss that too,” McLeod said.
“I just hope they come up with something for people that because of their health issues cannot breath into the tube.”