The trial of a New Brunswick woman with COPD charged with refusing the breathalyzer is over, but it will be sometime before a verdict is reached.
All that remains is an evidentiary decision from Judge Marco Cloutier which will not come down until July.
The charge facing Connie McLean stems back to a traffic stop on March 2, 2018 when RCMP Const. Mathieu Vachon conducted a traffic stop around 8 p.m. after seeing headlights swinging back and forth on a rural road. During his testimony at a previous sitting of the trial Vachon said he attempted to administer the breathalyzer nine times, claiming to hear no air coming through the machine on several attempts and very little air on others.
READ MORE: N.B. woman has car impounded after failing breathalyzer due to chronic lung condition
McLean says that her COPD, a respiratory disease that affects lung capacity and can make everyday tasks hard to accomplish, prevented her from providing a sample.
“I didn’t really know what to think, I was just almost to the point of tears because I didn’t do anything wrong … it’s being punished for being sick,” McLean told Global News several weeks after the incident.
After being unable, or unwilling, to provide a sample her car was impounded and her license suspended. McLean claims that she had a single can of Alpine with dinner hours earlier.
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WATCH: Trial begins in N.B. breathalyzer case
On Friday, defence lawyer Larry Veniot called McLean’s doctor Diane Stackhouse as an expert witness. Stackhouse has been practicing medicine in New Brunswick since 1975, and while she is not a respiratory specialist, she says she currently has one hundred patients that suffer from various stages of COPD.
According to Stackhouse tests conducted at the Sussex Health Centre show McLean has a lung capacity of 42.3 per cent, well below the threshold of a COPD diagnosis of 70 per cent.
Vachon testified previously that the mouthpiece of the breathalyzer test is similar to a straw.
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Crown prosecutor Elaina Campbell disputed the idea that McLean would have been unable to give a sample pointing to tests done not ling after the incident where she was able to provide about 2 litres of air, which would be enough for the breathalyzer to register a sample, according to Vachon.
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Under cross-examination, Stackhouse agreed that if the breathalyzer had been administered at the time of the tests McLean would likely have been able to provide a sample.
During closing arguments Campbell consitently returned to the differing testimonies of Vachon and McLean. McLean says she mentioned her COPD during the breathalyzer tests and testified Constable Vachon said to her “You’re not trying. You’re under arrest and going to jail”. She did not end up in jail.
In response Veniot argued that the testimony of Vachon relating to the specifications of the breathalyzer test could not be reliable used, as he was not qualified as an expert in the technology, calling it “at best, hearsay.”
Campbell, however, argued that Vachon is fully qualified, as he trains other officers how to administer the test, and administers it himself about five times a week on average.
Judge Cloutier will now have to make a decision on that portion of the evidence before a verdict can be reached and said it would come down on July 5.
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