Victoria senior couldn't provide breath sample due to her cancer

Wins fight, gets licence back

A Victoria cancer survivor who lost her driver’s licence and had her car impounded after she was unable to provide a proper breath sample has had her immediate roadside prohibition rescinded.

In February, 77-year-old Norma McLeod lost her licence for 90 days and her car for 30 days, even though there was no evidence she had any alcohol in her system.

In 2005, the former care aide had half the roof of her mouth removed because of mouth cancer. She now has a prosthesis, and has been diagnosed with chronic bronchitis and chronic obstructive lung disease.

The senior is behind what’s likely to be the first constitutional challenge to changes in Canada’s impaired-driving laws that came into effect on Dec. 18, 2018, granting police the power to demand a breath sample from any driver they stop.

In the past, police had to have a reasonable suspicion a driver had alcohol in his or her system before demanding a roadside breath test. Under the revised legislation, a driver who refuses, or, like McLeod, fails to provide a breath sample, faces a potential criminal charge.

“Eight months later, Norma finally got the right outcome. But this should never have happened,” said Jennifer Teryn, McLeod’s lawyer. “Without that particular law, she would never have been stopped. And it begs the question: Why did it happen to begin with when there’s nothing to suggest she had consumed a drop of alcohol?”

McLeod’s ordeal began on Feb. 14 at 9:35 a.m., when a police officer watched her come out of the liquor store at Hillside Centre with a bag. As McLeod drove off, the officer pulled her over and demanded a breath sample. McLeod was unable to provide a proper sample because of the prosthesis in her mouth and her inability to produce enough breath.

McLeod's doctor wrote a letter stating that she has a reduced capacity to exhale: “This is further compounded by extensive oral surgery due to a malignancy, with removal of her soft and hard palate. Despite a prosthesis, this would also negatively impact her ability to perform a breathalyzer test.”

Her next stop was the Driver Licensing Office on McKenzie Avenue to file a $100 appeal. But despite the doctor’s letter, the Road Safety B.C. adjudicator dismissed it.

McLeod paid a $900 impoundment fee and a $500 fine. She was required to register for a one-day, eight-hour Responsible Drivers Program at a cost of $930, plus $250 to reinstate her driver’s licence.

In July, the Superintendent of Motor Vehicles offered to conduct a rehearing of McLeod’s roadside prohibition, based on errors a lawyer for the Attorney General found in the adjudicator’s decision.

The hearing took place at the end of October, and on Monday, Teryn found out McLeod’s prohibition had been rescinded. That means the government will refund the fines and fees and the cost of towing and storing her car, said the lawyer. Her constitutional challenge could be heard in B.C. Supreme Court in June.

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