A Calgary woman says her car was impounded and her licence taken away after her medical condition prevented her from passing a breathalyzer test in B.C.
Jolyn Neal was visiting family in Victoria in March when she was pulled over at the intersection of Fort Street and Foul Bay Road. She was pulled over for using the GPS on her phone but showed no signs of impairment.
“He (the police officer) went further and said he smelled alcohol in my car and I said that’s not possible, I’ve been running around doing errands and I was just at the ICBC with my nephew,” Neal said.
“He asked me to do a breathalyzer which I wasn’t able to do and I told him before we started that I had COPD,” she continued. “I tried five times to do the test and could not do it.”
Neal was then arrested and put in the back of a police cruiser. She had her car immediately impounded for 30 days.
COPD, or chronic obstructive pulmonary disease, is a respiratory condition that leaves individuals with a shortness of breath.
The 61-year-old returned to Calgary, was forced to take cabs and found a ride back to Victoria to pick up her car.
Neal is not alone in her concerns over the way the immediate roadside provision works in British Columbia. Numerous people have come forward to Global News with similar concerns: they suffer from breathing issues, they had no signs of impairment and were still punished for a “refusal to blow.”
The good news from Neal is that she won her appeal, but she can’t get back the embarrassment she suffered by being forced to use the breathlyzer and being handcuffed.
WATCH: Victoria woman launches constitutional challenge of impaired driving laws
“There were people going in and out of the building nearby looking at me with disgust. It was terrible. I was embarrassed. I was really embarrassed,” Neal said.
“I knew I wasn’t drinking, I knew I was innocent. To go through all this was very embarrassing with people looking at me.”
Neal and her sister Jillian Player, who lives in Victoria, aren’t satisfied with just winning the appeal. They want to see the provincial government change the rules that are under growing scrutiny.
“It is accusing people of guilt and then the people themselves have to prove their innocence,” Player said.
“There’s so many things wrong with this that it needs to be exposed, and something needs to happen.”
WATCH: Vancouver Island senior victimized by unfair DUI laws?
The provincial government has opened the door to make changes. Solicitor General Mike Farnworth says he has tasked someone in his office with looking at the issue.
“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.
Lawyers Jerry Steele and Jennifer Teryn from the law firm Jeremy Carr & Associates are in the midst of launching a constitutional challenge against the provincial rules, and have taken on Norma McLeod’s case.
McLeod told Global News this month she was pulled over after leaving a liquor store near her home on Feb. 14. She showed no signs of impairment but was still ordered to conduct a breathalyzer test.
After blowing nine times, she was unable to make the machine register, and had her car impounded and her licence revoked. 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.
“Many people are being caught up in this without having anything to drink. It clearly is a ‘guilty 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.”
The law firm is now looking for others, like Neal, who have been punished for failing the test due to medical conditions. Teryn has been inundated with phone calls since the constitutional challenge was announced.
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 behaviour, 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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