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Nanaimo woman wins court challenge over forced breathalyzer test hours after driving

WATCH: Some are concerned that Canada's new impaired driving laws are overreaching.

A Nanaimo woman says her rights have been violated because of new federal drunk driving provisions.

Lee Lowrie says she was recently at her sister’s home in Maple Ridge when she received a call from the RCMP stating they had a very personal issue they needed to speak to her directly about.

She assumed it was a family emergency and invited them into the home.

“They said there was a personal issue they needed to speak to me about. I immediately thought something had happened to a family member,” Lowrie said.

READ MORE: Victoria-area woman with Bell’s palsy failing breathalyzer fuels calls for change

Lowrie and her boyfriend had travelled to Maple Ridge en route to pick up his children in Williams Lake. On the way to her sister’s house, the group stopped at the local pub for lunch. They each had one cocktail with the meal and headed home.

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When they arrived home they sat by the pool and had a few beers, without any plans to leave the house that day. The police arrived at the home about two hours after they got home.

Under the federal government’s roadside provision, police are legally allowed to request a breathalyzer without any signs of impairment. The test can be requested within two hours of a driver being on the road, even after someone has returned home and had alcohol to drink.

WATCH: Victoria woman launches constitutional challenge of impaired driving laws

Victoria woman launches constitutional challenge of impaired driving laws
Victoria woman launches constitutional challenge of impaired driving laws

Lowrie failed the breathalyzer test even after explaining to the RCMP that she had been drinking for a couple hours.

“The RCMP were not willing to let me prove the amount of alcohol I had consumed [at] home. I even invited them in to see the empties,” Lowrie said.

“It was like living in a communist country with no rights. Truly I felt violated.”

Lowrie was issued a 90-day licence suspension and 30-day vehicle impoundment. She was also required to take a driving course. On top of that she had to figure out how to get home to Nanaimo and her boyfriend’s kids were stuck in Williams Lake.

WATCH: Breathalyzer backlash over Calgary woman’s costly roadside suspension in B.C.

Breathalyzer backlash over Calgary woman’s costly roadside suspension in B.C.
Breathalyzer backlash over Calgary woman’s costly roadside suspension in B.C.

Lowrie eventually won her case in court. But she will never get back the expenses she had to pay, nor the legal fees. In total, Lowrie says the ordeal cost her about $3,500 in total with lawyer expenses, travel, taxis, and vacation hours.

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“This was devastating to my livelihood,” Lowrie said.

“I have never had a traffic violation in 25 years, it was horrible.”

Global News has reported extensively on the issues with the federal government’s new rules.

WATCH: More people complain about unfair ‘failure to blow’ tickets

More people complain about unfair ‘failure to blow’ tickets
More people complain about unfair ‘failure to blow’ tickets

Norma McLeod has taken 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.”

READ MORE: COMMENTARY: Canada’s new impaired driving law goes way too far

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.

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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.

READ MORE: Police in Canada can now demand breath samples in bars, at home

“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 [it]. 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.

READ MORE: 76-year-old with breathing problems has car impounded for failing to perform 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 breathe 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.

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Steele says in this latest case, Lowrie had her rights infringed upon.

“The police are abusing new rights and authorities under the Criminal Code,” Steele said.

“They can only initiate a mandatory demand if someone is driving a vehicle.”

The B.C. government is currently in the midst of reviewing the impacts on roadside breathalyzers. Solicitor General Mike Farnworth has reached out to his federal counterparts to express the concern that has been brought to his attention by British Columbians.

“Seeing the numbers of complaints we are starting to see, we have written to the federal minister to explain this is an issue,” Farnworth said.