Asthma defence for refusal rejected

Andrew Earl Mockler, 60, of Fredericton, challenged conviction, but appeal court upholds trial judge’s dismissal of medical excuse for failures to provide breath sample

A Fredericton man’s quest to overturn a breath-sample refusal conviction ran out of steam late last year when a Court of King’s Bench judge dismissed his appeal.

Andrew Earl Mockler, 60, of Kimble Drive, was convicted in Fredericton provincial court of refusing a breath demand, stemming from an Aug. 24, 2019, encounter with police.

Due to prior related convictions, he was sentenced to 30 days in jail, a two-year driving prohibition and a $100 victim-fine surcharge, but Mockler filed a notice of appeal with the Court of King’s Bench, which oversees initial appeals of such summary offences.

The Burton Courthouse. (Photo: Don MacPherson/The Fredericton Independent)

Mockler’s sole ground of appeal was that the provincial court judge who presided over his trial erred by failing to consider medical evidence presented in support of his defence of reasonable excuse for failing to provide a breath sample as requested by police.

King’s Bench Justice William Grant heard arguments on the appeal at the Burton Courthouse on Nov. 15, and in a decision penned Nov. 17 but only recently published online, the judge dismissed Mockler’s case, upholding the guilty finding.

In that written decision, Grant reviewed the facts of the case, noting the charge arose after Mockler got into a car accident the summer of 2019.

“On the date in question, Mr. Mockler was driving on Dundonald Street in Fredericton when his car crashed into a tree,” Grant wrote.

“The police were called, and Const. Anthony Pascon gave him the breathalyzer demand, which he appeared to understand.”

But problems arose when Mockler was asked to provide samples into a roadside screening device, failing to do so twice.

“Const. Pascon testified that Mr. Mockler was blowing out of the side of his mouth during the two attempts, resulting in not enough air going into the tube,” the judge wrote.

“When he was told this Mr. Mockler told the officer that he is asthmatic, at which point an ambulance attendant gave him the same medication he uses in his puffer. Mr. Mockler then made five more attempts but did not provide a satisfactory sample.”

The trial judge noted that video of the interaction with police corroborated Pascon’s account, as one could see Mockler’s lips weren’t firmly affixed on the device’s tube and could be seen fluttering as he blew.

The video also included audio confirming Pascon’s directions on how to blow properly and that Mockler wasn’t doing so.

However, the defence called Dr. Scott Robertson, Mockler’s family physician, as a witness, and he testified the defendant suffers from asthma.

“[Robertson]  testified that a person would need to wait 15 minutes after using the puffer given to Mr. Mockler at the scene in order to get full relief,” the decision states, noting that the video showed the attempt to provide a sample was made less than 15 minutes after the ambulance attendant administered the medication. 

However, the doctor conceded that Mockler didn’t exhibit the typical symptoms of an asthma attack - such as rapid breathing and brevity of speech - in the video.

“[Robertson] also testified that in 2021, Mr. Mockler was diagnosed with tracheomalacia, which he described as a collapse of the trachea in the windpipe making it weak and floppy,” Grant wrote in his decision. 

But the physician also acknowledged there wasn’t evidence on when Mockler developed tracheomalacia and he made no observations of it in 2019 or earlier.

“On cross-examination, Dr. Robertson confirmed that before 2019 Mr. Mockler did not require hospitalization and agreed that the severity of his tracheomalacia as of 2019 was uncertain,” the decision states.

Grant noted the law was clear that with a defence of reasonable excuse, the burden was on Mockler to show it was viable on a balance of probabilities.

“I find that in this appeal the central issue - whether or not Mr. Mockler met the burden of proving that he had a reasonable excuse for failing to provide an adequate sample - turns on findings of fact by the trial judge, including whether or not Mr. Mockler’s asthma affected his ability to do so at the time and whether or not his subsequently diagnosed tracheomalacia was, more likely than not, a cause of his failure to provide an adequate sample,” the appeal judge wrote.

The Fredericton Police Force responded to the scene Aug. 24, 2019, when Andrew Mockler crashed his vehicle into a tree on Dundonald Street. (Photo: Facebook)

“I further find that there is no extricable question of law raised in this appeal and therefore the decision of the trial judge is owed deference. The standard of review then is that of palpable and overriding error.”

When it comes to factual findings made by trial judges regarding evidence, he wrote, appeal courts aren’t empowered to interfere with such determinations.

“While there was, as pointed out by the appellant, evidence from Dr. Robertson that these typical traits are not always present in a flare-up, it is also clear from the trial judge’s decision that Mr. Mockler’s medical condition was clearly not relevant to his initial attempts to provide a sample,” Grant wrote, noting the trial judge, based on the video evidence, agreed with Pascon’s assessment that Mockler wasn’t forming the proper lip seal around the tube and wasn’t blowing properly.

“The appellant submits that the trial judge did not apply the medical evidence properly and thereby erred in law. I disagree. He reviewed that evidence and did so in the entire context of the interaction between Mr. Mockler and the police - as he should have. While the medical evidence was important, it couldn’t and shouldn’t have been dealt with in isolation.”

As such, Grant rejected the reasonable-excuse defence and dismissed the appeal.

Mockler has since served his sentence.

Don MacPherson can be contacted at ftonindependent@gmail.com.