Refuse Breath Test

Refusing a breathalyzer test is a decision that can have significant consequences for drivers charged with impaired driving and DUI offences.

Many people believe they have the right to refuse a breathalyzer test when stopped by the police. While this is technically true, it’s important to understand the consequences of such refusal. Under section 320.15 of the Criminal Code of Canada. where a driver refuses to provide a breath sample upon demand to a police officer, the police can lay a charge of refusing a breathalyzer test.

While some drivers may feel refusing the breathalyzer test will help their case, it rarely does. Where the police have the lawful authority to demand a breathalyzer test from a driver, the driver must comply.

Our team of DUI lawyers provide winning representation and defence for refuse breath test charges, and we can help you.  Call us at 416-731-7113 speak to our lawyers, and lets just discuss your case.

When considering whether or not to refuse a breathalyzer, it’s usually better to provide a sample of breath because:

A driver has the right to refuse a breathalyzer test and cannot be physically forced to submit to one. However, if the driver refuses, they can be charged with the criminal offence of “Refusing a Breathalyzer Test.” The penalty for refusing the test is the same as if the driver had taken the test and failed.

Refusing a breathalyzer test in Ontario carries the same penalties as if the driver took the test and failed.

Where a driver is convicted in court or pleads guilty to refusing a breathalyzer test they are liable for the following penalties:

• Criminal record: Drivers convicted of refusing a breathalyzer test are considered criminals in Canadian law and receive a criminal record for life.  Criminal records affect your ability to travel, employment opportunities, immigration & citizenship and even applications to higher education.

• Fines: First time offenders upon conviction usually receive a fine in the area of $1000 which can be increased depending upon the circumstances of the case.

• Licence Suspensions: Drivers receive a one-year licence suspension the first time they are convicted of a DUI charge. Second offence, the drivers licence will be prohibited for three years. Third offence a lifetime prohibition with the possibility of reinstatement after 10 years. Fourth time offenders convicted of are prohibited from driving for life with no possibility of reinstatement.

• Mandatory Alcohol Testing: Persons convicted of alcohol or other drug-related crimes are required to participate in treatment for their substance abuse problems.

• Mandatory Interlock Device: To continue driving after your licence is reinstated, you must have an ignition interlock device installed inside your vehicle. The device is an in-car alcohol breath screening device with the ability to prevent the engine from starting if it detects alcohol in your system.

• Mandatory Back on Track program: the Highway Traffic Act requires convicted impaired drivers or drivers with 2 or more administrative suspensions to successfully complete Back on Track, Ontario’s Remedial Measures Program, before their licence can be reinstated. Participants must pay a fee of approx $894.

• Insurance: Drivers convicted of refusing a breath test will see insurance rates increase dramatically.  Insurance companies believe that drivers convicted of drinking and driving charges present a higher risk of being in an accident.

Refusing a breathalyzer test in Ontario carries severe penalties.  These penalties can have long term effects on your life, family and livelihood.

The police do make mistakes and they don’t win every case, just because you have charged doesn’t mean you’re guilty.

Charges for refusing a breathalyzer test can be won. There are defences to refusing a breathalyzer, compromises and resolutions other than being found guilty and losing your licence.

Although the charge may seem straightforward 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 the officer is requesting them to do
• they have been told the legal implications if they do not comply,
• the officer has shown the driver how to provide the breath sample
• the driver was given reasonable opportunity to provide the sample

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, legally and has a case been made out beyond any reasonable doubt.

You’re not guilty unless a judge says you are, not the police or the crown attorney.

Where a police officer has reasonable grounds to believe that a person operating a motor vehicle has within the previous three (3) hours,

• committed an offence under section 320.14 (impaired driving) of the Criminal Code,
• the peace officer may, make a demand,
• requiring the person to provide, as soon as practicable,
• breath samples that, in a qualified technicians 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 320.15.1  of the Criminal Code of Canada.

Want legal advice or like to speak to a lawyer? The first step is to give us a call at 416-731-7113.

There is no fee or obligation to call and speak to us.  The discussion is held with complete privacy and confidence with the lawyer.

The lawyer will be able to give you an opinion about your case, and tell you:

• possible defences to the charge
• legal arguments in your case
• what you can do to help your case
• what the cost to defend the accusation would be

Where you decide to retain our services we will invite you to meet in our Toronto office or have a face to face Zoom online meeting.

In that meeting we’ll discuss the case in detail, plan your defence and arrange for the first court date.

We ask for a reasonable deposit upon retaining our services of 10 to 25 percent.