Man with severe asthma says new police powers unfair for people unable to do breath test

LATEST UPDATE | After this story was published, the RCMP sent another statement to Go Public, saying the force's national impaired driving policy is based on the Criminal Code. The available options to screen for impaired drivers are legislated by Parliament, it said, and police are not permitted to use alternatives. If a driver feels they had a lawful excuse for failing to comply with an impairment-screening test, "they are encouraged to speak with legal counsel and consider bringing their concerns before the courts," the statement said.

A B.C. man with severe breathing issues who recently had his car impounded and driver's licence suspended — twice — says new rules that allow police across the country to pull over any vehicle and force the driver to take a breath test are causing undue hardship for people who cannot blow into a breathalyzer.

Jimmy Forster, 63, suffers from severe asthma and chronic obstructive pulmonary disease and takes daily medications to help him breathe.

He lives in the small village of Chase — population 2,300 — in the B.C. Interior.

In recent months, Chase RCMP have pulled Forster over twice and charged him with failing to provide a breath sample, after he was unable to blow hard enough into a breathalyzer device to register a reading.

"I'm just totally stressed right now," says Forster, who has an audible wheeze when he speaks and slightly slurred speech due to a childhood brain injury that also left him with a limp.

He's on a disability pension, but is now on the hook for hundreds of dollars to get his car out of impound and his driver's licence reinstated, and says he has no idea how he will pay.

There are almost 200,000 Canadians living with severe asthma and more than two million people with chronic obstructive pulmonary disease, according to the Canadian Lung Association. Thousands of others have disabilities — such as Bell's palsy or facial paralysis caused by stroke — that may make them unable to perform a breath test, causing concern for human rights advocates.

"I think it's important that the police consider human rights principles," says Dylan Mazur, a lawyer with the B.C. Civil Liberties Association, "including the duty to accommodate people with disabilities who can't provide a roadside test."

A spokesperson with the RCMP's national headquarters, Sgt. Marie Damian, did not respond when Go Public asked whether a specific policy exists to provide an alternative for people with disabilities who can't do a breathalyzer test.

In an email she wrote, "The determination as to whether the subject was 'able and unwilling' or 'legitimately unable' to provide a sample will be up to the investigating officer."

"The actual volume and force of breath required for a sample is not significant."

Pulled over twice

Forster says his first police run-in occurred when he was returning from a trip to the post office on the afternoon of Feb. 14, and an RCMP officer pulled him over and accused him of not wearing a seatbelt.

Forster says he was belted in.

The officer decided to employ the alcohol screening powers that came into effect on Dec. 18, 2018, granting police the right to demand a breath sample from any driver they pull over.

In the past, police couldn't require a roadside breath test unless they had a reasonable suspicion that a driver had consumed alcohol.

In B.C., any driver who refuses — or, like Forster, fails to provide a breath sample — faces an immediate roadside prohibition (IRP), where their licence is suspended and their vehicle towed, even though there is no evidence of any alcohol consumption.

In other provinces, drivers face a potential criminal charge for refusing to blow.

Forster says he blew into the breathalyzer device, but couldn't get a reading. He says he explained that he has severe asthma, but the officer didn't believe him.

"He just said, 'Blow harder! Blow harder!'" says Forster, who says he tried about a dozen times to breathe deeply into the device, and thought he was going to fall over because he was getting dizzy.

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The RCMP officer issued an IRP, despite a lack of any evidence that Forster was impaired.

"I just couldn't believe it," says Forster, whose doctor told Go Public his patient has no history of a drinking problem.  

Forster appealed to an adjudicator, submitting his medical records. The adjudicator dismissed the case and Forster got his licence back and his car out of impound, without financial penalty.

Asks to take a blood test

A few weeks later, on the morning of March 20, police pulled Forster over again, just after he'd gone for a haircut and filled up his car at a gas station.

"He [the officer] didn't ask me any questions," says Forster. "He just brought the breathalyzer and I blew five to six times and had the same thing happen again."

This time, Forster says, he asked the officer if he could take a blood test instead.

"He totally ignored me," says Forster. "Just in one ear, out the other."

Once again, police impounded Forster's car and suspended his licence for 90 days.

When he appealed a second time, an adjudicator said he believed police notes that said Forster was "putting on a show" to make it look as though he was unable to provide a breath sample.

The notes do not claim that Forster appeared to have been drinking, smelled of alcohol, or was driving poorly.

"I was so choked," says Forster, who faces about $1,400 in fees to get his car released from impound and his licence back next month. He has already spent $200 each time he appealed the IRPs.

Forster lives with his cousin Sandy Johnston, who relies on him to drive her places since having a stroke 10 years ago.

"I'm totally dependent on Jimmy," she says. "After his car got taken the second time, he was just in tears. And then I broke into tears, too. And we were crying together."

'They can't do the tests'

A leading researcher on lung disease says assessing whether or not someone's lung function is adequate to obtain a breathalyzer reading is not something that can be easily done in the field.

"The concern I have is that there likely are people that have lung function that's so low that they can't do the tests," says Dr. Christopher Carlsten, division head of respiratory medicine at the University of British Columbia and director of the Occupational Lung Disease Clinic at Vancouver General Hospital.

He says viral infections and other stressors, such as being pulled over by police, can affect the breathing capacity of someone with compromised lungs.

Others with disabilities challenge test

Go Public has tracked down other cases in B.C. — as well as in Alberta, Saskatchewan, Ontario and New Brunswick — in which people with disabilities say they struggled to provide a breathalyzer test.

One of the more prominent cases has prompted a charter challenge against mandatory alcohol screening.

Norma McLeod, 76, of Victoria, was pulled over on Feb. 14, and says she was unable to provide a breath sample due to a chronic lung condition and an implant in the roof of her mouth that's a result of cancer. Police towed her car and suspended her licence.

"It's happening more frequently now that the federal government has introduced the provision which permits mandatory alcohol screening based on absolutely no suspicion of alcohol consumption," says criminal lawyer Jennifer Teryn, part of the legal team representing McLeod.

"If someone's unable to provide a sample upon demand, it's my position that the police should have to get engaged in some minor investigation to find out for themselves whether there's a legitimate reason for that or not," says Teryn.

Mazur says he also expects police to ask people whether they have a disability preventing them from complying with a roadside breath test demand.

"I've heard this from people with disabilities who have mobility issues or who have speech issues — that they can be perceived as intoxicated," says Mazur.

"What the RCMP has to do is look at their policies, and look at whether there are provisions of reasonable accommodation based on disability."

'I plan to raise these concerns'

Go Public asked Mike Farnworth, B.C.'s minister of public safety and solicitor general, about the difficulties some people with disabilities have  providing breath tests.

In a statement, Farnworth wrote, "I plan to raise these concerns with my federal counterparts. In addition, I've asked my staff to research whether there are any amendments that could be made to the immediate roadside prohibition appeal process in these situations, including options to reduce any financial barriers for requesting a review."

His ministry said that of 2,558 IRP reviews conducted last year, 491 were dismissed. The office could not determine how many of the cases were dismissed due to disability or medical issues.

Worried it will happen again

Jimmy Forster is due to get his driver's licence back on June 20, but says he's anxious police will keep pulling him over.

"I can't afford it, I'm on disability," says Forster. "I can't sleep at night."