Acquitted... Because of Asthma?

Over the last few days I have been watching The Staircase and listening to Canadian legal podcast The Docket (and The Docket's subsequent after show analyses of The Staircase, to be totally honest). Fortunately, an interesting asthma-related legal story crossed my path, allowing me to combine my decade-long interest in asthma with my newfound quasi-infatuation with law and the legal system, in Canada specifically.

Car trouble or intoxication?: Inability to provide a breath sample

In September 2017, Dieter King from Cambridge, Ontario was driving his 1983 Pontiac Grand Prix when his “show car” “broke an axle, lost a tire and mounted a curb”. ¹ A police officer noted King’s “eyes were glassy and he smelled of alcohol”, and thus King was taken to the police station for a Breathalyzer test.¹The Reporter article states King was unable to produce a breath sample, stating his asthma was exacerbated by the chemicals and fumes he is exposed to in his work at a metal shop. It is written that King attempted to provide the sample and offered to provide a blood sample for testing when he was unable to complete the breath test, though the documentation suggests personnel (whether the patrol officer or the breath technician) were dubious King had tried with diligence to produce the sample, despite disclosing his asthma.¹

So, they went to court. Justice Scott Latimer stated he was initially “not entirely satisfied” that King had tried his best to provide the sample and may have been feigning his efforts to obstruct police from charging him. King testified to the effects of his asthma on his ability to perform the test that day. The evidence stated otherwise. King’s defense lawyer, Ryan Heighton, summated his arguments that King did not intend to obstruct police. As King offered to provide a blood sample for analysis when he failed to complete the Breathalyzer test and disclosed his asthma, “The judge found that he couldn’t find beyond a reasonable doubt” that King was intentionally trying to evade the test.”¹

Acquitted but not alone in this problem

Eventually, King was found not guilty and acquitted of the charge for refusing to provide a breath sample.¹ What’s interesting, though, is King is not alone in this legal problem. In fact, the next day, when I tried to find asthma-related case law, I found 70 cases on LexisNexis Quicklaw that were related to the search term asthma AND Breathalyzer in the last 10 years. Here are a few of them via the Canadian Legal Information Institute (CANLII).

In April 2010, a man named James Thomas Compton in Corner Brook, Newfoundland similarly tried to produce breath samples when pulled over by police. Compton, who has asthma and COPD, was deemed to have been uncooperative with police fingerprinting and was still “rude, arrogant and angry” the following morning upon release per police, he was also found not guilty.² The case was made by his lawyer, Robby Ash, that Compton had never refused to provide the sample, even though his technique in performing the test is in question, as his tongue may have been blocking the device.² Despite police stating Compton had not shown signs of breathing issues while in custody and that he refused medical treatment for breathing problems (though did later seek hospital care), and despite lack of evidence his symptoms that day would have posed problems, the judge noted he was “actually cooperative” when trying to produce the sample, and ruled “there was a reasonable doubt that Compton was able to provide the sample required by the Breathalyzer” ². As guilt must be “beyond a reasonable doubt”, Compton was acquitted of the charges.²

However, not all cases lead to an acquittal. In Victoria, British Columbia, where roadside breath testing occurs, a woman with COPD appeared intoxicated to an officer who responded to a call about driving without a seatbelt.³ After nine failed attempts at producing a breath sample due to technique issues documented³, the case reached the Supreme Court of British Columbia where Janina Greenlees was charged with refusing to produce a sample as she did not disclose her COPD to the officer.³ Other cases referenced in the Greenlees defence include Sivia v. British Columbia, in which the charge of refusal to provide a breath sample was upheld as Sivia did not disclose his asthma to the reporting officer ⁴—the charge against Donato Bisceglia, who did not disclose his anxiety/panic disorder and its perceived impact on performing Breathalyzer testing to the BC officer performing roadside testing, was upheld similarly—he, too, was not acquitted of charges.⁵

Know your rights

I’m not a lawyer nor a doctor—and I am far from either, so this is neither legal or medical advice. While I only looked at Canadian cases, I am sure this issue and argument have found its way to the docket of many American courtrooms as well. The cases and slight differences in what led to the decisions made in each—disclosure vs. non-disclosure of medical conditions, even if not invited by the peace officer—make it important to know both the laws and your rights if you live with lung disease like asthma. These cases underscore that your initial response to law enforcement officers and disclosure of potentially pertinent information can change the decisions made in a case.

And of course, in many of these cases, the defendant presented documented physical signs of intoxication. Most importantly, abide by the law and don’t drink (or take drugs) and drive, and you won’t have to deal with such issues!