A Prince George man's asthma trouble was not enough to convince a B.C. Supreme Court Justice to overturn a 90-day driving prohibition for failing or refusing to provide a breath sample.
In reaching his decision Friday, Justice Ron Tindale upheld the finding of an adjudicator for the Superintendent of Motor Vehicles, who in turn agreed with an RCMP constable's decision to issue the prohibition.
When Scott Darin Sherba was stopped on March 28, 2014 at 11:05 p.m., the constable noticed the smell of liquor on his breath and demanded he blow into an approved screening device.
Sherba was given seven chances to provide enough breath but failed with the device registering a "nogo" each time and, after the last attempt, he was issued an immediate roadside prohibition.
In part, Sherba argued his medical condition was a reasonable excuse for failing to provide a sample.
But according to a narrative the constable provided to the adjudicator and then Tindale, Sherba did not cough or wheeze and though he used his puffer before the seventh attempt, "merely put the straw into his mouth, saying 'I'm blowing into it.'"
Despite that, Sherba still had enough lung capacity that when he was talking to his lawyer, the constable could hear him from inside his police vehicle, according to the narrative.
And it was noted that while Sherba's doctor confirmed he is asthmatic and uses inhalers regularly, he did not say he was incapable of providing a suitable breath sample.
On three of the attempts, the device did not register that any air was being delivered, and on the other four, it showed insufficient volume, according to the constable. But according to the device's certificate, "nogo" appears if breath falls to less than 12 litres per minute after blowing has started and before 1.2 litres has been expelled.
Sherba argued the constable's statement. He also argued the certificate contradicts the assertion no air was being provided. The device would not have displayed "nogo" unless air was introduced into it and so the adjudicator's finding that Sherba provided "no air" was erroneous.
But Tindale found the adjudicator was aware the device will read "nogo" if a low volume of breath is registered after blowing has started. "It was open to the adjudicator to weigh the information before him and come to his findings of fact," Tindale said in his reasons for judgment.
Tindale found the adjudicator's decision "falls within a range of possible acceptable outcomes" and dismissed Sherba's petition in a decision issued Friday following a hearing Nov. 24.
