An Edmonton judge has ruled in favour of an Alberta woman who said asthma prevented her from completing a breathalyzer test nearly two years ago.
Cheryl Kenworthy told CBC News last year that she tried to give a breath sample at a roadside stop near Hinton on Dec. 4, 2021, more than a dozen times but struggled to breathe hard and long enough.
She was charged with failing to take the test, her vehicle was impounded, her driver’s licence was suspended for three months and for a year she had to drive with an ignition interlock device — or blow box — installed in her vehicle.
After an adjudicator refused to overturn her administrative penalty, she applied for a judicial review of that decision and won, based on a technicality.
In an Oct. 23 decision, Court of King’s Bench Justice Peter Michalyshyn ordered the administrative penalty be cancelled because the director of SafeRoads Alberta had not provided her with the right maintenance records for the test device.
In the judicial review hearing held earlier this year, the SafeRoads Alberta director had argued that the legislative requirements had been met as of December 23, 2021, the date of her review before the adjudicator, because the legislation had changed since the roadside stop, but the judge sided with Kenworthy.
“I was happy but after already suffering the full consequences of an impaired driving charge, it was kind of a small victory,” Kenworthy told CBC News on Friday.
She said she spent a lot of time and thousands of dollars in legal fees to fight the penalty because she felt her rights were being eroded and she was being victimized.
She said she has heard from Canadians in Manitoba, B.C. and Alberta who have also struggled to complete breathalyzer tests.
“There’s absolutely nothing to stop this from happening again,” she said.
Vanessa Foran, the former president and CEO of Asthma Canada, told CBC News last year that if even mild or moderate asthma is uncontrolled or triggered by cold air or stress, it could be difficult to give a breath sample.
Asthma Canada wrote to the federal attorney general about the issue after following multiple similar cases in 2019.
Last year, the press secretary for Alberta’s transportation minister told CBC News that many studies on respiratory impairments and breathalyzer testing show only the most debilitating respiratory conditions would prevent someone from giving a proper breath sample.
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