An Alberta woman who says her asthma prevented her from completing an alcohol breath test at a roadside stop in December says she endured a three-month driver's licence suspension and has spent thousands of dollars trying to prove her innocence.
Cheryl Kenworthy, a 57-year-old engineer who lives on an acreage near the town of Hinton, said she was pulled over after she had unknowingly driven by a SafeRoads stop on the evening of Dec. 4, 2021.
Kenworthy said after she was pulled over, she tried to give a breath sample more than a dozen times but struggled to breathe hard and long enough — because of her asthma.
"I did try sitting down, standing up, I tried everything to make it work, and there was just no way it was going to happen," she told CBC News.
She said she told the RCMP officer that she had asthma and asked for a blood test instead but was denied. The officer charged her with failure/refusal.
After she dealt with police and waited for a tow truck to take her vehicle away, her husband drove her to the hospital for a blood test. The test result, which CBC News has reviewed, showed she was well under the legal limit.
Symptoms not severe enough
Because Kenworthy failed to complete the test, her driver's licence was suspended for three months and her vehicle was impounded.
She said friends and family were inconvenienced by driving her around, including to her job 90 minutes away in Grande Cache, and she felt trapped, not able to buy groceries by herself or take one of her horses to the vet.
She asked for her case to be reviewed, but the adjudicator wrote in a January decision that her medical documents and affidavits only confirmed she had a medical condition but did not show her symptoms were so severe they prevented her from completing the test.
Kenworthy, who has never been charged with impaired driving, said she has spent about $10,000 paying fines and legal fees to fight her sanction and anticipates paying at least $6,000 more before her judicial review in March of 2023.
In the meantime, she uses an ignition interlock device — or blow box — to start her car. She said the box's settings have been adjusted so it requires reduced breath pressure but she sometimes still struggles with it.
"It's embarrassing having to tell people the situation, especially when it's something you're not guilty of, but yet you're still suffering the full consequences, as if you were an impaired driver," she said.
Kenworthy said she has had asthma for all her life and it is triggered by environmental factors, including pollen, dust, pet dander and cold weather.
Dec. 4 was a cold night (below –10) and Kenworthy said her asthma had been acting up because she had been cleaning her house earlier in the day. She had also recently had a cold and illness tends to exacerbate her symptoms.
Kenworthy gave the adjudicator her prescription record, the blood test results and a doctor's note. In the short note, Dr. Sarah Corser wrote that Kenworthy has longstanding asthma and when it is severe, "this could certainly affect her ability to provide a breath sample."
According to the SafeRoads decision, the constable who charged her had noted she was not showing signs of fatigue or loss of breath.
Vanessa Foran, president and CEO of Asthma Canada, said following multiple similar cases in 2019, Asthma Canada, the Canadian Lung Association and COPD Canada sent a letter to the attorney general asking for clarification and accommodation for people with breathing issues.
The organization never heard back, but because fewer cases came on Foran's radar since then, she had assumed provinces were making accommodations.
Court records from the past two years show other Albertans with asthma have failed to provide breath samples and adjudicators did not cancel their administrative penalties.
Foran said if even mild or moderate asthma is uncontrolled or triggered, it could be difficult to breathe and give a breath sample. She also said cold air and stress are common triggers.
"I think better training for the police force on how to handle these situations would be very helpful to them and to people with lung conditions," she said.
RCMP spokesperson Troy Savinkoff said officers do not receive medical training to detect lung issues.
He said tests have been successfully administered to many individuals with lung conditions and the amount of air the test requires is not significant.
Rob Williams, press secretary for Alberta's transportation minister, said it would be inappropriate for the provincial government to comment on a specific case with a pending appeal.
In general, he said, many studies on respiratory impairments and breathalyzer testing show only the most debilitating and significant respiratory conditions would render someone incapable of giving a proper breath sample.
"Anyone suffering from a severe respiratory impairment significant enough to make them incapable of providing a proper breath test will have a variety of symptoms, including shortness of breath, fatigue and an inability to have a conversation," he said, adding that police officers are trained to recognize these symptoms.
Williams said police officers follow the Criminal Code of Canada and cannot detain people for blood tests. Doing so, he said, "would likely be unconstitutional, pull police off the streets, and burden our health-care system."