Refuse Breath Test

If a police officer has reasonable grounds to believe that a person is committing, or has within the previous three (3) hours,

• an offence under section 253 (impaired driving) of the Criminal Code,
• the peace officer may, make a demand,
• requiring the person to provide, as soon as practicable,
• samples of their breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration of alcohol in the person’s blood.

Everyone commits the offence of refusing a breathalyzer test who, without reasonable excuse, fails or refuses a demand made under section 254.1 of the Criminal Code of Canada.

The police do make mistakes and they don’t win every case, just because you have charged you it doesn’t not mean you are guilty. Charges for refusing a breathalyzer test can be won. Many times there are defences, compromises and solutions other than being found guilty and losing your license.

Although the charge may seem straight forward in that the driver either “did or did not provide a breath sample”, there are legal issues that must be proven to convict a driver of this charge, for example;

• did the police have the legal right to make the demand
• did the police clearly explain the obligation to the driver
• did the driver understand what the officer was telling them
• did the accused have the opportunity to speak the a lawyer
• were the rights of the accused abused in any way by the police

The police have a legal responsibility to ensure that when they demand a breathalyzer test, that the driver understands what they are required to do, and the implications if they do not comply.

Many times this is not done properly.  If the accused did not fully understand, or the police did not explain properly or give the driver a reasonable opportunity to provide the breath sample, then this can become a defence to the charge.

It’s your right to have a judge hear your case and make and impartial decision based upon the facts. It’s for the judge to decide if everything was done properly and legally, not the police or the crown attorney. Your not guilty unless a judge says you are.

The police must have the lawful authority or grounds to demand that a driver provide a sample of their breath.  A breathalyzer test maybe demanded when a police officer;

• observes the driver driving a motor vehicle, and
• smells the odour of an alcoholic beverage on the drivers breath, or
• asks the driver if they have consumed alcohol and the driver admits that they have consumed alcohol prior to driving.
• has arrested the driver for impaired driving, and
• has reasonable and probable grounds to believe that the accused ability to drive has been impaired due to the consumption of an alcoholic beverage.

When requested to supply a sample of breath for a breathalyzer the driver must comply with the officers demand. If the driver refuse breathalyzer test and does not comply the officer may arrest the driver.

Any driver can refuse a breathalyzer test if they wish to do so, you cannot be physically force to submit to a breathalyzer test. If the driver does refuse to take, the test the police can charge the driver with the criminal offence of “Refusing a Breathalyzer Test”.

he penalty for refusing the breath test is the same penalty as if the driver took the test and failed, so usually it’s is in the best interest for the driver to comply with the demand and provide a sample of breath because;

1. The driver may pass the test.
2. The breath tests give another area to dispute the charge.
3. Low breathalyzer readings may make the driver eligible for reduced charges.

Where a driver refuses to take the breath test the defence will deal with the issue of whether or not the police had a right or the grounds to demand a breathalyzer test and did the accused fail without lawfully authority to provide the breath test to the officer.

The penalty for refusing a breathalyzer test in Ontario is the same as if the driver took the test and failed.

The charge of refuse breathalyzer test has the following penalties;

• mandatory drivers licence suspension for at least one year,
• a criminal record for life
• a fine between 1000 and 2000 dollars
• insurance increase of thousands of dollars per year
• mandatory alcohol and drinking and driving counselling
• you may lose your livelihood, loss of employment, if you cannot drive
• the cost to reinstate your drivers license after conviction is approx. $3,500.00

You’re not guilty unless a judge says you are, not the police or the crown attorney.  It’s your right as a Canadian citizen to be properly defended in court and to have the evidence of your accuser challenged by a criminal lawyer.

Our law firm of DUI lawyers has years of experience with Refuse Breathalyzer Test charges, DUI defence and motor vehicle law. We provide superior legal representation for those looking to do everything possible to win and be properly represented in criminal court.

We know being arrested can be devastating, but there is a solution and we can help. As experienced trial advocates, our team of of criminal lawyers, former crown attorneys, and retired police officers ensures that No Stone is Left Unturned™ in defending and representing our clients.

We stake our reputation on doing everything to win your case. Our approach ensures a winning defence and we have the reviews and winning cases to back it up. Call us 647-689-6014 to discuss your legal defence with Toronto’s best rated criminal defence team today.