Nanaimo woman wins legal fight over drinking and driving

Lee Anne Lowrie flew into a panic after receiving a phone call from the RCMP saying they had a personal issue to discuss with her.

“I thought something had happened to someone in my family,” Lowrie recalled.

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It was Saturday, April 13, and the Nanaimo woman had travelled to Maple Ridge for a medical-specialist appointment. When the appointment was over, Lowrie and her boyfriend went to a local pub. Each had a drink and some appetizers.

The couple got into an argument over a minor financial issue. They left the restaurant about 3:30 p.m. and drove to her sister’s home, arriving about 3:40 p.m., Lowrie said.

“They intended to spend the afternoon and evening at her sister’s house, so they had a few drinks when they got back there,” said Victoria lawyer Jennifer Teryn.

“It was a social thing.”

But just before 5:30 p.m., the RCMP called Lowrie.

Lowrie gave police the address and at 6 p.m. five police officers were standing in her sister’s driveway.

The officers told Lowrie they had received an anonymous complaint that she had consumed “multiple alcoholic beverages” before getting into a pickup and driving away from the restaurant at 4:53 p.m.

Police pulled out an alcohol screening device and asked Lowrie to blow.

Lowrie told the officer her last sip of alcohol was two minutes earlier. The officers delayed the first test by 15 minutes. Lowrie blew a fail.

Police towed her vehicle and gave her an immediate roadside prohibition, also known as an IRP. Her truck was impounded for 30 days and she lost her licence for 90 days. She faced a $500 fine and would have had to pay $930 for a responsible driving program and $250 to reinstate her driver’s licence.

Teryn, who practises criminal and constitutional law and has conducted more than 300 reviews of immediate roadside prohibitions, said police had no legal authority to make Lowrie blow into the screening device.

With managing partner Jerry Steele, Teryn has been fighting changes to Canada’s impaired driving laws that came into effect in December.

The new laws give police the power to demand a breath sample from any driver they lawfully stop. Previously, police had to have a reasonable suspicion a driver had alcohol in his or her body before demanding a roadside breath test.

Police can also demand a test within two hours of a driver being on the road, even after someone has returned home and consumed alcohol.

Fortunately, Lowrie video-recorded her interaction with the officers, said Teryn.

In a report to the Office of the Superintendent of Motor Vehicles, a police officer alleged that Lowrie was slurring her words.

“Her speech is not slurred at all. The video shows that,” said Teryn.

The police report also indicates Lowrie did not make a second request to blow into the screening device, which Teryn said is not true, as the video shows.

“That’s a lie and we know it’s a lie because there’s video evidence to prove this and the video was submitted to Road Safety B.C. with all my written submissions,” said Teryn. “Lee very explicitly asks for a second test on the video.”

The police provided false evidence, she charged.

“They used the mandatory screening demand inappropriately. They were wrong to do it, but they believed they were lawfully entitled to do it,” said Teryn.

Lowrie hired Teryn, who was successful in getting the IRP revoked. “I was drinking at home. I didn’t do anything wrong. I’m totally innocent,” said Lowrie. “My rights were being challenged. At this point, we’re guilty until proven innocent. I felt intimidated, violated, and I’ve never had a problem with police. I’m a law-abiding, tax-paying citizen.”

Teryn has launched what’s likely to be the first constitutional challenge to changes in Canada’s impaired driving laws. Client Norma McLeod, a 76-year-old cancer survivor, has applied to the B.C. Supreme Court for a judicial review of an immediate roadside prohibition.

In February, the former care aid, who volunteers with Thrifty Foods’ Sendial program, lost her licence for 90 days and her car for 30 days, even though there was no evidence she had any alcohol in her system.

In 2005, McLeod had half of the roof of her mouth removed because of mouth cancer — she now has a prosthesis in her mouth. She has also been diagnosed with chronic bronchitis and chronic obstructive lung disease.

On Feb. 14, a police officer watched her come out of the liquor store at Hillside Centre at about 9:35 a.m. with a bag. As McLeod drove off, the officer pulled her over and demanded a breath sample. McLeod said she was unable to provide a proper sample because of the prosthesis and her inability to produce enough breath.

Teryn was also successful in having Inger Forsyth’s IRP overturned. The sick, 68-year-old woman was left at a bus stop on a cold February morning after she was unable to provide a proper breath sample. There was no evidence she had any alcohol in her system.

ldickson@timescolonist.com

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