Refusing Roadside Tests

Refuse Roadside Breathalyzer Test

Nicholas Charitsis is a Toronto lawyer specializing in refusing roadside breathalyzer tests and drinking and driving offences for the Toronto and area courts. Consultations for refusing a breath test are conducted at no charge by calling 416-878-2275 or contacting our office.


If you refuse a roadside breathalyzer it is considered a criminal offence. If you drive a motor vehicle the police can to ask you to provide a sample of your breath under three (3) circumstances;

  • The officer finds the driver in care or control of a motor vehicle
  • The officer smells alcohol on the driver’s breath, or
  • The driver admits to the officer that they have consumed alcohol

Providing a Sample of Breath to the Police

Once the officer has reasonable grounds to demand a breathalyzer test, the officer will ask the driver to provide a sample of their breath into an Approved Roadside Screening Device.

The Roadside Screening Device is a portable breathalyzer instrument that gives the officer one of three (3) readings when you blow into it;

  • Zero to .50ml of blood gives the officer the instrument gives the actual blood alcohol reading.
  • .50mgs and 100mgs gives a warn reading on the breathalyzer.
  • Over 100mgs per 100ml of blood the breathalyzer gives a reading of fail.


Definition of Refusing a Breath Test

A driver is considered to have refused a breathalyzer test when;

  • When a police officer on reasonable grounds makes a demand for a breathalyzer test,
  • The police officer makes a demand for the breath test,
  • The driver without lawful authority fails to provide a best test
  • The driver either outright refuses to take the test, or does not provide a suitable sample of breath

In determining whether or not the driver provides a suitable sample of breath the police officer makes that determination but must be able to justify or present the evidence to the court. e.g. The breathalyzer machine makes a continuous buzzing sound while the breath goes into it, and while the accused tried to blow the instrument indicated that no air was being inputed.


Registering a Fail on the Breathalyzer

When the police officer obtains a reading of “fail” on the roadside breathalyzer test, the police officer can arrest the driver for Driving Over 80mgs.

Many times drivers are placed in the stressful situation of being forced to provide a sample of their breath and facing the possibility of incriminating themselves with a breathalyzer reading over 80mgs.

Many times drivers are physically unable to do the test or provide a proper sample and are charged with refusing to provide a sample of their breath, when they would not have been over the limit.


Penalty for Refusing to take a Breathalyzer Test

The penalty for refusing to take a breathalyzer test is the same penalty as if you took the test and failed.
The penalties are the same as if the driver was arrested for impaired driving.

  • Additional suspension of the drivers licence.
  • Fines between one thousand and two thousand dollars.
  • Periods of probation with conditions.
  • Possible jail sentences for serious offences.
  • You cannot drive or operate anything that is pushed, pulled or driven by an engine, including boats and machinery during this period.

The mandatory penalties where the judge has no control over are:

  • A Criminal Record for life.
  • Mandatory one year licence suspension.
  • Mandatory “Back on Track Program to reinstate the drivers licence after one (1) year.
  • Your insurance will go into high risk insurance rates of over ten thousand (10,000) dollars per year for five (5) years.


Defenses to Refusing a Roadside Test

When the police are demanding a roadside breathalyzer test, it is the police officer’s responsibility to explain to the driver the obligations placed upon them by Canadian Law.

Many times police officers fail to properly explain to the driver what is required of them and how to properly do the test.

The police officer being the person in control has the responsibility to;

  • Ensure that the Breathalyzer was working properly
  • Ensure that the driver understands what they are required to do
  • Tell the driver that they must provide a sample of their breath, and the ramifications if they do not provide the test
  • Ensure that the test is done properly
  • Make sure that the driver is able to provide the test

Getting help for Refusing a Roadside Breath Test

When you discuss your charge with me, a lawyer with years of trial experience with refuse breath test charges in the Toronto area, you’ll learn that I can help you and best defend you in court. (examples of winning refuse breath test charges).

When it comes to fees, I am one of the most affordable lawyer in Toronto.

You don’t have to pay the whole fee up front and I offer payment plans to fit your situation. A reasonable deposit gets me working to fight your case.

I offer a free initial consultation to discuss your case in detail, either at my office or a place convenient to you. Contact me to discuss your case free of charge at 416-878-2275.

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