The federal government is facing growing pressure over impaired driving rules brought into effect last December.
Jimmy Forster is the latest driver struggling with breathing difficulties to launch a constitutional challenge against the restrictions, after the 63-year-old was pulled over twice in his hometown of Chase, B.C. on March 20 without showing any signs of impairment.
“I was blowing so hard, so many times, I started getting dizzy and they came in towed my car away,” Forster said.
“I couldn’t come up with a reading. The officer told me I wasn’t breathing hard enough and I said I was breathing as hard as I can.”
WATCH: (Aired April 23) Victoria woman launches constitutional challenge of impaired driving laws
By failing to make the machine register, Forster broke the law and immediately had his car impounded and lost his license for 90 days.
Forster has joined a series of cases of British Columbians with breathing difficulties struggling to have a breathalyzer register.
That new federal law, introduced by the Liberal government in December, allows police to demand a breathalyzer test of any driver they pull over, no longer needing suspicion the driver has consumed alcohol.
WATCH: (Aired May 28) Concerns new impaired driving laws are overreaching
Forster is alleging his Charter rights were violated over the mandatory test. He says he told the officer he had asthma, and the evidence indicated he had difficulties breathing.
The court filings point out that there was no evidence the officer was a “medical expert” or could detect Foster’s physical ability to either blow or not.
“This case was particularly egregious because we don’t believe the stop was lawful in the first place,” J Carr & Associates lawyer Jerry Steele said.
“The police officer had, in his paperwork, written that he found this to be a great opportunity to use the new screening demands. The public should be concerned because this is a guilty before proven incident situation.”
More cases mounting
Norma McLeod was the first driver to bring Canada’s “unfair” roadside impaired driving test to court. The 76-year-old Victoria woman is also working with the lawyers at J Carr & Associates to launch a constitutional challenge.
“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.”
In McLeod’s case, she was pulled over on Feb. 14 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 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, a respiratory illness.
The federal government acknowledges it is aware of the issues coming forward in British Columbia.
“We have two devices that are being tested and we will continue moving forward to look at other ways of testing,” Attorney General David Lametti said.
WATCH (AIRED APRIL 16, 2019): More people complain about unfair ‘failure to blow’ tickets
Even though the breathalyzers themselves are being looked at, there isn’t much hope from these lawyers that Ottawa will make any substantial change — without being forced by the courts.
“I would hope that they would, but at this point I have no hope they will proactively make that change,” J Carr & Associates lawyer Jennifer Teryn said.
The pair of infractions cost Forster more than $2,000 in fees, as well as the humiliation of losing his license. He uses a wheelchair to get around because of shortness of breathing, and has agreed to the constitutional challenge to change things for others.
“I’m not doing this for myself. I am doing it for everyone else who has the same problem I do,” Forster said.
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