Driver claims long-haul COVID prevented him from completing breathalyzer test

A B.C. judge has set aside a decision confirming a driving prohibition against a Vancouver man who claimed long-haul COVID-19 left him unable to complete a roadside breathalyzer test.

According to a B.C. Supreme Court judgment, a Vancouver Police officer gave Peter Ronald Gibson a 90-day prohibition on Feb. 11, 2021 for failing to provide an adequate breath sample after blowing into a screening device seven times.

An adjudicator tasked with hearing Gibson's appeal to the Superintendent of Motor Vehicles was supposed to determine whether Gibson had a "reasonable excuse."

Gibson's doctor wrote a letter confirming that the COVID Gibson had in early January 2021 still caused breathing problems when he was stopped a month later.

But Justice Michael Tammen found the adjudicator treated Gibson unfairly — rejecting his excuse and making pronouncements on a medical condition without having the expertise needed to discount the doctor's opinion.

"Amongst all of the people looking at this file ... there was only one individual who could pronounce in any way on the medical ability to blow into a breathalyzer and that was Mr. Gibson's physician," Gibson's lawyer, Luisa Hlus, told the CBC.

"And her information was disregarded."

'Shortness of breath on exertion'

Tammen set aside a decision confirming Gibson's prohibition and ordered the Superintendent of Motor Vehicles to have a new hearing on the case before a different adjudicator.

According to the judgment, Gibson was undergoing CT scans and chest X-rays around the time he was stopped.

His doctor wrote that he had "ongoing respiratory symptoms, including shortness of breath on exertion."

"This could contribute to his difficulty performing breathalyzer test during recent traffic stop," the doctor's letter said.

But the adjudicator said that the doctor had "not established whether she is aware of the amount or duration of air flow that is required to successfully provide a breath sample into a [screening device]."

Tammen said that reasoning implied that the adjudicator was familiar with the amount of breath needed to complete a successful test — something that isn't contained in the breathalyzer manual.

And if that wasn't what the adjudicator meant, then the judge said she was placing herself in the role of an expert witness.

Either way, Tammen said Gibson deserved a new shot at explaining his excuse.

'He was deeply troubled'

Hlus said the case is the first one she has come across involving COVID-19, but that her office is regularly called on to challenge situations in which adjudicators reject medical conditions as a reason for a failure to blow.

"We in the office are all troubled by non-medical personnel judging medical information to be insufficient in numerous cases and in effect ignoring a citizen's medical condition and putting people to a standard that they cannot meet medically when they are required to blow into a breathalyzer machine," Hlus said.

Hlus said there's a misconception about how much breath is needed to complete a roadside test.

"It's not an easy feat. It's not like a drinking straw," she said.

"There's much more resistance, there's much more force required. And people don't appreciate that, and there are various medical conditions that can make this exercise difficult."

Hlus said the ordeal has been difficult for Gibson.

"He was very troubled and panicked roadside to not be believed by the police and to not be believed by the adjudicator, knowing that he had a breathing difficulty, and knowing that he had a medical condition that he was getting care for," Hlus said.

"So he was deeply troubled that nobody was hearing him."