Refusing a Breathalyzer Test

Refusing to Provide a Breath Sample without a lawful excuse is a Criminal Charge against the Criminal Code of Canada. The charge of Refusing a Breath Test has the same penalty as if the driver blew into the breathalyzer and failed the test, or blew over the legal limit of .08 milligrams. There are two different refuse breath test charges:

Refuse Roadside Screening Device

Refusing a Roadside Screening Device occurs when the police stop a motorist and make a lawful demand for the driver to provide an immediate breath sample into an approved alcohol screening device, (called an Alcotester GLC 7410), commonly used at RIDE spot checks.

The police can demand that the driver provide an immediate breath sample into a roadside screening device under two circumstances.

The driver admits to the officer that he has consumed alcohol or,
The police officer smells or has reasonable grounds to believe the drive has consumed alcohol.

The driver must comply with the officer's demand and provide a suitable sample of their breath into the instrument. The officer can make this demand for a breath sample anywhere including on private property

Refuse Breath Test

This charge of Refusing to provide a breath samples occurs where an officer has made a lawful demand to the driver for a sample of their breath.

Usually the driver is taken to the police station where they are brought before a police breathalyzer technician who takes a sample of the drivers' breath using a breathalyzer instrument, commonly an intoxilyzer 5000c.

The penalty for Failing to Provide a Breath Sample and refusing a Roadside Screening Device is the same as if you failed the test and were charged with Impaired Driving. All the same mandatory penalties for Impaired Driving and drinking and driving offences apply to any refuse breath test charge.

About Refuse Breath Test
Although this criminal charge may sound straight forward and simple, in that the accused was required to give a sample of their breath and refused or did not do so. The charge is actually much more involved.

When making a demand for a breath test the police are under an obligation to ensure that the accused had a reasonable opportunity to comply with the demand, and that the accused understood what was required for them to do.

It is not sufficent for a police officer to make a demand, the accused says no, and then the officer lays the charge. In reviewing each drinking and driving charge OTT has the background, knowledge and experience that no other law firm in Ontario has to help you win your case.

Our firm has some of Ontario top criminal lawyers working together with former police officers who have the background in these types of cases and can provide you with the best possible defense.

Am I allowed to speak to a lawyer before I give a breath sample?
Upon arrest or detention, an individual is entitled to consult with a lawyer for the purpose of obtaining advice about their situation. Everyone upon arrest by the police must also be advised of the availability of a 24-hour toll-free legal aid number for those who do not have a lawyer to call but wish to obtain legal advice. This is commonly called "Duty Counsel" If the police fail to advise a person under arrest of these constitutional rights, or fail to provide the person under arrest an opportunity to contact counsel, the failure to do so may result in the exclusion of the defendant’s alcohol level readings obtained at the police station. This exclusion of evidence would likely result in an acquittal at trial.

The legal right to speak with lawyer is not an absolute right at the time of a roadside demand for a breath sample as the accused is not under arrest at this time. Recent case law developments suggest that in some circumstances, a person required to provide a roadside breath sample may have a right to consult with counsel prior to providing a breath sample. In some instances, the failure to permit consultation with a lawyer prior to providing the sample may result in the exclusion of the sample and any subsequent evidence. Each situation is fact specific. An experienced criminal lawyer who regularly defends drinking and driving cases will be able to provide you with an opinion on whether or not your constitutional rights have been violated by the police during the course of their investigation OTT Legal has that experience.

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