A judge in Edmonton has made a decision in support of a woman from Alberta who claimed that her asthma made it impossible for her to finish a breathalyzer test about 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.
Following the rejection of her appeal by the adjudicator, she pursued a judicial review of the decision and emerged victorious due to a technicality.
In a ruling on October 23, Justice Peter Michalyshyn of the Court of King’s Bench instructed that the imposed administrative penalty should be revoked. This decision was made due to the failure of the director of SafeRoads Alberta to furnish accurate maintenance records for the testing device.
During the judicial review hearing conducted earlier this year, the director of SafeRoads Alberta contended that the legislative criteria had been fulfilled on December 23, 2021, when her case was reviewed by the adjudicator. She argued that the legislation had undergone modifications after the roadside stop. However, the judge favored Kenworthy in this matter.
Kenworthy expressed to CBC News on Friday that although he initially felt joy, his emotions were dampened by the repercussions he faced due to an impaired driving charge.
She claimed that she devoted a significant amount of time and a substantial sum of money towards legal expenses in order to combat the penalty. This was due to her belief that her rights were gradually diminishing and she was being subjected to unfair treatment.
She mentioned that she has received feedback from individuals in Manitoba, B.C., and Alberta who have encountered difficulties while attempting to successfully perform breathalyzer tests.
She mentioned that there are no barriers preventing this from occurring again.
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.
After observing numerous comparable cases in 2019, Asthma Canada contacted the federal attorney general to address the issue.
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.