When considering whether or not to refuse a breathalyzer, it’s usually in your best interests to comply with the demand and provide a sample of breath because:
Refuse Breathalyzer Tests
The police are under a legal obligation to ensure the driver understood all legal implications and penalties of failing to provide a sample of breath of their breath.
The police must ensure the driver understood the implications of refusing before charging them.
Refusing Breathalyzer Tests
- the driver may pass the test
- breath tests give another issue to dispute
- low breathalyzer readings maybe eligible for reduced charges
Where a driver refuses to take the breath test, the defence will deal with the issues of:
- did the accused have a lawful reason to refuse
- did 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
- did the accused understand the implications of refusing the test
A driver can refuse a breathalyzer test if they wish to do so. You cannot be physically forced to submit to a breathalyzer test.
Where the driver does refuse to take the breath test the police can charge the driver with the criminal offence of “Refusing a Breathalyzer Test”.
The penalty for refusing the breath test is the same penalty as if the driver took the test and failed.
Penalty Refusing Breathalyzer Test
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;
Refuse Breathalyzer Test – Definition
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 320.1 of the Criminal Code of Canada.
When can the Police Demand a Breathalyzer Test?
The police must have the lawful authority or grounds to demand a breathalyzer test.
A police officer can only demand a breathalyzer test when the 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 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.
It is a criminal offence to refuse a breath test lawfully demanded by a police officer.
★★★★★ Excellent lawyer!!! Nicholas was a pleasure to deal with. He knows the DUI laws inside and out. Not only did he get my impaired driving and refuse breath test dropped but he cleared my name from the police database. I wouldn’t hesitate referring him to my friends and family if any of them were to be charged with DUI or related matters. Jacob C. Toronto (Google Reviews)
Fighting Refuse Breathalyzer Test Charges
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. Many times there are defences, compromises and solutions 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
- the driver knows what they are required to do,
- the implications if they do not comply,
- 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 and legally, not the police or the crown attorney. You’re not guilty unless a judge says you are.
Retaining Charitsis Law to Defend You
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.
During that phone call the lawyer will:
- listen to your case
- answer any questions you have
- review the documents the police gave you
- Please send any documents for review
- using the form at side of page
- Please send any documents for review
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.