A woman who suffers from Chronic Obstructive Pulmonary Disease (COPD), a respiratory disease that affects lung capacity, has been found guilty of refusing the breathalyzer in an oral decision given on Friday.
Justice Marco Cloutier said the crown had proven beyond a reasonable doubt that Constance Elizabeth McLean could have supplied a breathalyzer sample, and failed to comply with a justified demand to give one before handing out a $1,500 fine and a year long ban on operating a car.
McLean was charged on March 2, 2018 when RCMP Const. Mathieu Vachon observed her swaying across the road just before 8 p.m. near Shannon, New Brunswick.
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Vachon was the only witness for the crown and testified that he smelled beer on her breath and decided to administer a breathalyzer test. After nine attempts no sample was given. He also says during several of those tests he could hear no air blowing through the tube.
McLean says her COPD disease impacted her ability to give a sample.
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In his ruling Cloutier said that the charge is dependent on three factors: the existence of a demand by a police officer, the failure or refusal of the accused to produce a sample, and proof that the accused intended to produce that failure. These factors can be overruled by the existence of a medical condition that does not allow a person to provide a sample.
Cloutier did not dispute the COPD diagnosis, but did say it was necessary to look at it in a larger context. Three days after the charge McLean saw Stackhouse and was in reasonably good health.
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Vachon testified that McLean had no problem speaking to him, did not exhibit any symptoms, and did not mention her COPD until after the arrest.
But McLean did dispute that, testifying that she told Vachon right away that she had COPD. Each testimony varied widely and Cloutier said that he did not find McLean to be reliable after applying the WD principle, a legal tool used to determine the credibility of a witness.
McLean said after the decision that she is disappointed with the outcome and is not yet sure if she will appeal.
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