B.C. nurse's driver's licence suspended after she couldn't do breathalyzer test due to facial paralysis

A B.C. nurse whose face is partially paralyzed says her driver's licence was suspended and her car impounded after she was unable to provide a breathalyzer sample during a roadside check — and that Canadian laws about alcohol breath tests leave people with certain disabilities no way to prove their innocence.

Jamie van der Leek, 44, of Port Alberni, says she developed a severe case of Bell's palsy — damage to the facial nerve, which left her paralyzed on one side of her face — during one of her pregnancies.

The palliative care nurse was vacationing with her husband and children in Penticton, in B.C.'s Okanagan Valley, on Saturday, when an RCMP officer stopped her for a roadside check after a day at the lake. The officer asked van der Leek to provide a breath sample to test for alcohol. She says she tried, but because of her condition, she failed to create a seal over the device and blow in enough air for a viable test.

She says she explained her medical condition to the officer, who told her she was being difficult and said she would be served an immediate roadside suspension.

'I can't even blow up a balloon'

"I said 'I'm actually trying my best but I can't even blow up a balloon for my kid's birthday party,'" she said. "I said, 'Go ask my kids in the vehicle, they'll tell you mommy's face is broken and she can't blow up balloons.'

"I showed him my smile. I showed him my teeth. I showed him one side of my face is paralyzed. At that point I started pleading with him saying, 'Please take me to the hospital to do a blood-alcohol level [test] because I haven't been drinking.'"

Van der Leek's car was impounded for 30 days, and her driver's licence suspended for 90, leaving her unable to work as a registered nurse and care for her patients who require end-of-life care.

"I've never had a criminal record, I've never had a criminal past," she said. "In the meantime here I sit being discriminated against because of my facial deformity."

Penticton RCMP said Thursday in a statement that it could not provide further details of what happened on the scene because it is an ongoing investigation.

"Generally speaking, if an individual can breathe and speak normally, there is no reason a breath sample cannot be provided," it said in the statement.

"It takes about as much effort as blowing through a straw inserted into a glass of water. The likelihood that an individual cannot provide a breath sample is extremely rare and is usually due to reasons other than a physical disability or medical condition."

B.C. Supreme court case

Van der Leek's situation is not unique in B.C.

In one high-profile 2019 case that prompted a charter challenge against mandatory alcohol screening, Norma McLeod, 76, of Victoria, had her car towed and licence suspended after being unable to provide a breath sample due to a chronic lung condition and an implant in the roof of her mouth that was the result of cancer.  

"I do think Canadians should be concerned because of this exact issue," said B.C. lawyer Jennifer Teryn, who was part of a team that filed a judicial review with the B.C. Supreme Court regarding McLeod's case. "There are a number of people who are more vulnerable, whether they have illnesses or injuries that prevent them from being available to comply with the demand.

If a driver refuses to provide the sample or is unable to provide a sample, a police officer can issue an immediate roadside prohibition (IRP) — or make an arrest if the person has a spotty driving record.

Teryn works with Victoria-based Steele Law Corp., a firm that focuses on roadside prohibitions and other alleged driving offences. 

Prior to 2018,  police were required to have a reasonable suspicion that a driver had been drinking before demanding a test. But in December 2018, the federal government amended the Canadian criminal code, allowing police to demand roadside breath tests of any driver. 

Calls for legal change

Teryn said being served an immediate roadside prohibition can trigger a lengthy and expensive process, including an automatic $250 driver's licence reinstatement fee, $500 fine, towing and storage costs up to a $1,000 and mandatory participation in the responsible driver's program at a cost of around $930. A review process is available, but can be difficult to win without the help of a lawyer, she said.

"In the system, the burden of proof is on the applicant or the driver to prove the case," she said. "So essentially the police officer can say what they want about what they observed, and then it's incumbent on the driver to disprove what the officer is saying or make a defence, which can be really difficult."

Van der Leek said the experience on the side of the road left her feeling "completely humiliated" as she repeatedly tried and failed to provide the sample.

The officer "said 'put your hand over your face, pinch your lip closed,'" she said. "I tried everything he told me to do and I couldn't do it."

She thinks the laws need to change.  

"I don't want to see one more person with a medical issue go through what I'm going through," she said. "I would like to see that if someone can't produce a breathalyzer for a medical reason that the officer has to immediately take you to emergency to have our blood-alcohol taken.

"Give us a chance to prove we're innocent."