Refuse Roadside Breath Tests

Refusing Roadside Breathalyzer Tests

Refuse roadside breath test charges can be successfully challenged. A refusal charge does not automatically mean you’ll be convicted. As experienced impaired driving lawyers, Charitsis Law has spent more than 25 years helping drivers fight these charges throughout Toronto and the GTA.

Led by former Crown Attorney Nicholas Charitsis, our team knows how refusal cases are prosecuted, what the Crown must prove, and where police mistakes can create a reasonable doubt.

If you’ve been charged after refusing a roadside breath test, don’t assume the case against you is unbeatable. Our hundreds of Google reviews reflect the results drivers have achieved with Charitsis Law.

If you’ve been charged with a DUI, speak directly with Toronto DUI lawyer Nicholas Charitsis. He’ll answer your questions and explain how Charitsis Law can fight your DUI charge.
Call 416-731-7113 and let’s just have a discussion about fighting your case.

Refuse Roadside Breath Test Penalties

What are the penalties for refusing a roadside breath test?

A conviction for refusing to comply with a roadside breath demand carries the same criminal penalties as impaired driving. The consequences are mandatory and can affect your licence, employment, travel, and financial stability for years.

If convicted, the penalties typically include:

• Criminal record (permanent) — A conviction results in a lifelong criminal record unless later addressed through a record suspension.
• Minimum fine of $2,000 (first offence) — The court cannot go below the statutory minimum.
• Mandatory driving prohibition — A federal driving ban applies across Canada.
• Ignition interlock requirement — Installation and monthly maintenance costs are the driver’s responsibility.
• Probation conditions — Courts may impose reporting or other compliance conditions.
• Jail for repeat offences — Subsequent convictions carry mandatory terms of imprisonment.

These penalties apply even though no breath reading was taken. The refusal itself forms the basis of the criminal offence.

What is Refusing a Roadside Breath Test

What does refusing a roadside breath test mean?

Where a driver is charged with Refusing a roadside breath test, the police are alleging that they had a lawful authority to demand a breathalyzer test and the driver refused or failed to do so.

Failing to provide a breath sample is a criminal offence in Canada. When a police officer makes a lawful demand for a breath sample, the driver must provide a breath sample forthwith.

In the Toronto criminal courts the refusal, is treated as a separate criminal offence to any other drinking and driving charge. Refusing a breath test carries the same mandatory penalties as if the driver took the test and blew over the legal limit.

Under section 320.15 of the Criminal Code of Canada, police may demand a roadside breath sample during a lawful traffic stop using an Approved Screening Device, in the following situations:

• The police officer smells the odour of an alcoholic beverage on the driver’s breath and therefore has reasonable grounds to believe they have consumed alcohol prior to operating the vehicle, or
• The driver makes a statement to the police officer that they have consumed alcohol prior to driving.

In each case, the police officer must have reasonable grounds to believe that the driver has consumed alcohol.

As Toronto DUI lawyers, we regularly defend refusal charges by carefully examining whether the demand was lawful, whether proper procedures were followed, and whether the evidence can withstand scrutiny in court.

If you have been charged with refusing a breath sample, speak directly with criminal lawyer Nicholas Charitsis at 416-731-7113

Relevant Criminal Code provision:
Failure or Refusal to Comply with Demand — Criminal Code of Canada (s. 320.15)
[View the full section on the Justice Laws Website (Government of Canada)]

Fighting Refuse Roadside Charges

What are the legal issues to fight a refuse roadside breath test charge?

Under section 320.15 of the Criminal Code of Canada, the charge is not based on impairment. It is based on whether a person failed or refused to comply with a lawful breath demand made by a police officer.

To convict the driver, the Crown must prove several essential elements beyond a reasonable doubt.

• A lawful demand was made
  The police officer must have had the legal authority to make the roadside demand. This includes a lawful traffic stop and use of an Approved Screening Device as required by the Criminal Code.
• An Approved Screening Device was present and available
  The officer must have had an approved device in their possession at the time of the demand. The device must be authorized for roadside screening under Canadian law.
• The demand was clearly communicated
  The officer must clearly inform the driver that they are required to provide a breath sample and that failure to comply is a criminal offence. Confusion, unclear instructions, or incomplete explanations can become important legal issues.
• The driver failed or refused to provide a suitable sample
  A refusal can include saying no, delaying without lawful excuse, or failing to provide a proper breath sample. The issue is whether a suitable sample was provided when lawfully required.
• There was no lawful excuse
  If a medical condition or other lawful reason prevented compliance, that may become relevant. The absence of lawful excuse is a necessary part of the Crown’s case.

Refusal cases often turn on technical details — what was said, how it was explained, whether the device functioned properly and was the driver given reasonable opportunities to provide a breathalyzer test. s

Understanding how the law defines refusal is critical before deciding how to respond to the charge.

How the Crown Proves a Refusal Case in Court

What Does the Crown Attorney have to prove in a refuse roadside breath test charge?

A refusal charge is not based on alcohol readings. Instead, it is based on what occurred during the roadside interaction. In court, the Crown attorney must present evidence showing that the legal requirements for a refusal were satisfied beyond a reasonable doubt.

Refusal cases often depend heavily on the testimony of the police officer and the details recorded in their notes.

To secure a conviction, the Crown typically relies on:

• Evidence of a lawful traffic stop
  The officer must explain why the vehicle was stopped and confirm that the stop was lawful under Canadian law.
• Testimony that a proper breath demand was made
  The officer must clearly describe the wording used when making the demand and confirm that the driver was told they were required to provide a sample.
• Proof that an Approved Screening Device was used
  The Crown must establish that the device was authorized and available at the time of the demand.
• Evidence that the driver did not provide a suitable sample
  This may include testimony about whether the device registered airflow, whether warning tones sounded, or whether the accused appeared to comply but failed to blow properly.
• Confirmation that there was no lawful excuse
  The Crown must show that the refusal was intentional and not caused by a legitimate medical or physical limitation.

Because refusal cases often turn on what was said, how it was said, and what occurred in a matter of minutes at the roadside, small inconsistencies in evidence can become significant.

A careful review of the disclosure is critical in determining whether the legal requirements were properly satisfied.

Common Defence Issues in Refusal Cases

Refusal charges often turn on technical and procedural details. Because the offence is based on what occurred during a short roadside interaction, small errors can become legally significant.

Every case depends on its specific facts, but common defence issues may include:

• Whether the demand was lawful
  The officer must have proper legal authority to make the roadside breath demand. If the traffic stop was unlawful or the demand did not meet the statutory requirements of the Criminal Code, the charge may be challenged.
• Whether the obligation to comply was clearly explained
  It is the police officer’s responsibility to ensure that the driver understands that providing a breath sample is legally required and that failure to comply is a criminal offence. The consequences of refusal must be clearly communicated. If the explanation was rushed, unclear, or incomplete, that can become a central issue in the case.
• Whether the instructions were clear and properly given
  The officer must provide proper direction on how to give a suitable sample. Confusing, inconsistent, or inadequate instructions may affect whether the refusal was truly intentional.
• Device-related concerns
  The Approved Screening Device must be available and functioning properly. Issues relating to its operation or use can become relevant depending on the evidence.
• Medical or physical inability
  A genuine medical condition that prevented the driver from providing a suitable sample may constitute a lawful excuse, if supported by credible evidence.
• Charter of Rights considerations
  Issues relating to detention, delay, or other constitutional rights may arise and affect how the evidence is treated in court.

Refusal cases are rarely decided on emotion. They are decided on whether the legal requirements were strictly met. The Crown must establish that the demand was clear, properly explained, and that the refusal was informed and intentional.

A careful review of disclosure — including officer notes, in-car video, body-worn camera footage, and device evidence — is critical in assessing whether the legal standard for conviction has been satisfied.

Get a Review of Your Refusal Charge

Why you should speak to a DUI lawyer before anything else.

A refusal charge can appear straightforward. There is no breath reading, and the allegation may seem simple. In reality, these cases often turn on precise legal and procedural details that are not obvious at first glance.

What was said at the roadside, how the demand was delivered, whether the consequences were clearly explained, and whether the Approved Screening Device was properly used can all affect the outcome of the case.

Before making any decision about pleading guilty, it is important have the disclosure and the evidence reviewed by a criminal lawyer.

Our DUI defence team will:

• Examine the legality of the stop and breath demand
  We review whether the officer had proper authority and whether the statutory requirements were strictly followed.
• Assess whether the obligation and consequences were properly explained
  We determine whether the demand was clear and whether any alleged refusal was informed and intentional.
• Review device use and procedural compliance
  We analyze how the Approved Screening Device was used and whether proper instructions were given.
• Identify constitutional or evidentiary issues
  We assess whether any Charter concerns or evidentiary weaknesses arise from the investigation.

Let’s put the whole case together. The police evidence, disclosure, what the Crown Attorney is saying, and match it up with your version of events. Let us show you how we can defend your charge.

If you are facing a refusal charge in Ontario, call our DUI defence team today at 416-731-7113 to schedule a confidential case review. There is no obligation to call. We will carefully review your documents, answer your questions directly, and explain your options clearly so you can make an informed decision about how to proceed.

Serving Clients Across the Greater Toronto Area and Central Ontario

If you are facing a refuse roadside breath test charge or any drinking and driving offence, Charitsis Law represents clients throughout Southern Ontario. Meet with an experienced criminal defence lawyer at our offices in Brampton, Oshawa, Aurora, Newmarket, or Muskoka, or contact us to discuss your case and the court process.

Discuss your case with a Toronto DUI Lawyer

Being charged with refusing a roadside breath test does not mean you’ll be convicted.

Call former Crown Attorney Nicholas Charitsis at 416-731-7113 to discuss your case, understand your options, and get qualified legal advice.

After 25 years of defending DUI cases in Toronto, I can tell you how we can fight this charge for you.

FAQ for Refusing Roadside Breath Tests

Being charged with refusing a roadside breath test can be confusing. These frequently asked questions answer the concerns we hear most often from people facing these criminal charges.