R. v. Hamilton – Refuse Breath Test Defence
R. v. Hamilton is an Ontario refusal case where the driver made several unsuccessful attempts to provide a roadside breath sample. He was arrested without being told his fourth attempt would be his last, then immediately asked to try again.
The court found reasonable doubt about whether there had been a clear and unequivocal refusal and found him not guilty.
If you have been charged with refusing a breath test, call Nicholas Charitsis directly at 416-731-7113. Our DUI lawyers can review what happened, the police evidence and the breath-testing procedure and explain the defence strategies that could apply to your case.
What Happened in R. v. Hamilton?
Police made a roadside breath demand after stopping Andrew Hamilton in June 2011. The officer explained how to provide a breath sample into an Approved Screening Device and showed him how the device worked.
Mr. Hamilton then made four attempts to provide a proper breath sample:
- First attempt: He put his lips on the mouthpiece but did not blow.
- Second attempt: He blew into the device, but not long enough to provide a suitable sample.
- Third attempt: His breath sample lasted longer, and the officer said he came close to providing a proper sample.
- Final attempt: He started blowing, stopped and then started again. The device required a continuous breath, so the sample was not suitable.
During the testing, the officer coached Mr. Hamilton to keep blowing until the tone stopped. The four attempts took place over about six minutes.
Police Arrested Him for Refusing the Breath Test
After the fourth attempt, police arrested Hamilton for refusing to provide a breath sample.
- However, the officer had never told him that his fourth attempt would be his last chance. The officer also testified that Mr. Hamilton’s attempts had been improving and that his third attempt was close to being successful.
- Immediately after his arrest, Mr. Hamilton asked for one more chance to provide the breath sample. Police refused. He asked again about three minutes later, but police still would not let him try.
The Approved Screening Device was still there and working. The officer admitted another attempt could have been provided. The judge also accepted that Mr. Hamilton’s request to try again was genuine.
Relevant Case Law:
R. v. Hamilton — Ontario Court of Justice (2012 ONCJ 252)
View the full decision on CanLII (CanLII)
Was This a Refusal to Provide a Breath Sample?
The issue was whether Mr. Hamilton’s actions amounted to a clear and unequivocal refusal to provide a breath sample.
The court accepted that some of his attempts were not genuine. However, that did not end the case. The judge still had to consider the full circumstances and decide whether the Crown Attorney had proven the refusal beyond a reasonable doubt.
Was Hamilton Entitled to One Last Chance?
Several facts supported the defence:
- Police never told Mr. Hamilton that his fourth attempt would be his last.
- His attempts had been improving, and the third attempt came close to providing a proper sample.
- He asked to try again immediately after being arrested.
- The judge accepted that his request to provide another sample was genuine.
- The police officer and Approved Screening Device were still available.
- Allowing another attempt would have taken only a few seconds.
The court looked at earlier refusal cases that considered the time between the alleged refusal and a later offer to comply. The availability of the officer and breath-testing equipment was also important.
This is different from a driver clearly saying they will not provide a sample and later changing their mind. In Hamilton, the entire sequence happened quickly, and the driver immediately asked for another opportunity.
The judge was not satisfied that the Crown Attorney had proven an unequivocal refusal beyond a reasonable doubt.
This is also why the circumstances surrounding a refuse breath test charge should be reviewed carefully. An unsuccessful attempt to provide a sample does not necessarily prove that a driver refused to comply.
Why Was R. v. Hamilton Found Not Guilty?
The judge found Mr. Hamilton not guilty because the Crown Attorney had not proven beyond a reasonable doubt that his refusal was clear and unequivocal.
The court focused on several important facts. Mr. Hamilton was never warned that his fourth attempt was his last chance. He asked to try again immediately after his arrest. His request was genuine, and the police officer and working Approved Screening Device were still available.
The judge found that allowing one more attempt would have taken only a few seconds. In these circumstances, refusing to let Mr. Hamilton try again created reasonable doubt about whether he had actually committed the offence.
What Does R. v. Hamilton Mean for Refuse Breath Test Charges?
R. v. Hamilton does not mean police must always give a driver unlimited chances to provide a breath sample. Each case depends on its own facts.
However, the decision shows that a refuse breath test charge can involve much more than whether police received a proper sample.
A DUI lawyer can examine the driver’s attempts to comply, instructions given by police, any last-chance warning, the time involved and what happened after the alleged refusal. Police video and officer notes can also help show exactly what was said and done.
If the Crown Attorney cannot prove a clear refusal beyond a reasonable doubt, there can be a defence to the charge.
Do Police Have to Give You a Last Chance to Provide a Breath Sample?
Not always. R. v. Hamilton does not say that every driver has a right to unlimited attempts or that police must always give a final warning before laying a refusal charge.
Instead, the court looks at the full circumstances. A driver who clearly refuses to provide a sample is different from someone who tries to comply, fails to provide a suitable sample and then immediately asks to try again.
What Does the Court Consider in a Refuse Breath Test Case?
Important factors can include:
- Your attempts to provide a sample: How many attempts were made, how long the testing continued and whether you appeared to be genuinely trying to comply.
- Police instructions and warnings: What police told you about providing the sample, the consequences of refusing and whether you were warned that it was your last chance.
- What happened after the alleged refusal: How quickly you asked to try again and whether that request appeared genuine.
- Whether another test was possible: Whether the police officer and breath-testing device were still available and why police decided not to allow another attempt.
These factors can help the court decide whether there was a deliberate and unequivocal refusal to comply with the breath demand.
A Last Chance Is Not Automatic
R. v. Hamilton does not mean that a driver can repeatedly refuse or deliberately provide unsuitable samples and then demand another opportunity.
At some point, police can reasonably conclude that a driver has failed or refused to comply. The important question is whether the Crown Attorney can prove that refusal beyond a reasonable doubt based on all the circumstances.
This is why a DUI lawyer should review the entire roadside investigation, not simply the fact that police did not obtain a proper breath sample.
In Hamilton, the driver immediately asked to try again. His request was genuine, the officer and screening device were still available, and he had not been warned that his previous attempt was his last. Those facts helped create reasonable doubt.
Charged With Refusing a Breath Test?
A refuse breath test charge can be fought. R. v. Hamilton shows why the details of the police investigation matter. What you said, your attempts to provide a sample, the instructions police gave and what happened after the alleged refusal can all become important evidence.
If you have been charged, call and speak with Nicholas Charitsis about what happened. As a Toronto DUI lawyer he can review the disclosure, police video, officer notes and breath-testing evidence to identify the defence strategies that could apply to your case.
Call Nicholas directly at 416-731-7113 for a confidential discussion about your refusal charge.
Frequently Asked Questions About R. v. Hamilton and Refusing a Breath Test
Q. Do police have to give you another chance to provide a breath sample?
A. Not always. R. v. Hamilton does not give every driver an automatic right to another attempt.
However, the full circumstances matter. In Hamilton, the driver immediately asked to try again, his request was genuine, and the officer and working screening device were still available. He had also never been told that his previous attempt would be his last.
Those facts helped create reasonable doubt about whether there was a clear refusal.
Q. How many chances do you get to provide a roadside breath sample?
A. There is no fixed number of attempts that applies to every case.
The court can consider how many attempts were made, whether the driver appeared to be trying to comply, what instructions police provided and how long the testing continued. In R. v. Hamilton, the driver made four unsuccessful attempts before police arrested him.
Q. Can you be charged with refusing a breath test if you tried to blow?
A. Yes. Police can lay a refusal charge when they believe a driver deliberately failed or refused to provide a suitable breath sample.
However, unsuccessful attempts do not automatically prove a criminal refusal. The Crown Attorney must still prove the offence beyond a reasonable doubt based on the evidence and circumstances of the case.
Q. What does an unequivocal refusal mean in a breath test case?
A. An unequivocal refusal is a clear refusal to comply with a lawful breath demand.
The court looks at the driver’s words and actions and the entire breath-testing process. In R. v. Hamilton, the driver’s immediate and genuine request to try again helped raise reasonable doubt about whether his earlier conduct amounted to an unequivocal refusal.
