Refuse Roadside Screening Device
Refusing a roadside breath test means failing or declining to provide a breath sample when a police officer makes a lawful demand under the Criminal Code of Canada. The refusal itself is treated as a separate criminal offence and carries the same mandatory penalties as impaired driving, including a criminal record and licence suspension.
Under section 320.15 of the Criminal Code, police may demand a roadside breath sample during a lawful traffic stop using an Approved Screening Device. Since the introduction of mandatory alcohol screening, officers do not need to observe signs of impairment before making the demand. If a driver refuses or fails to provide a suitable sample without lawful excuse, criminal charges may follow.
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)]
Penalties for Refusing a 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.
Getting Your Licence Back After a Refusal Conviction
After a conviction for refusing to comply with a breath demand, regaining your licence is not automatic. There are mandatory steps that must be completed before you can legally drive again in Ontario.
To restore your driving privileges, you must complete each of the following:
- Serve the full federal driving prohibition
The court will impose a mandatory driving prohibition that applies across Canada. You cannot legally operate any motor vehicle during this period, even if your provincial suspension has expired. Driving while prohibited is a separate criminal offence and can result in jail. - Complete the Back on Track remedial measures program
Ontario requires completion of the Back on Track program before reinstatement. This includes an education or treatment component depending on your assessment results. Program costs typically range from approximately $634 to over $900, depending on the level of intervention required. - Undergo required medical evaluation
The Ministry of Transportation may require a medical review before reinstatement to confirm you meet Ontario’s medical standards for safe driving. This can involve physician reporting and additional documentation. - Pay licence reinstatement fees
All applicable Ministry reinstatement fees must be paid before your licence will be restored. These fees are separate from court fines, program costs, and interlock expenses. - Install an ignition interlock device for a mandatory period of three years
An ignition interlock device must be installed in your vehicle for three years following conviction. You are responsible for installation, monthly monitoring, calibration appointments, and maintenance costs throughout the interlock period. - Obtain high-risk insurance coverage
After a refusal conviction, most drivers are classified as high-risk. Insurance premiums commonly increase to $8,000–$12,000 per year or more, and elevated rates often remain in place for several years.
Until every condition has been satisfied, you cannot legally operate a motor vehicle in Ontario. The total financial impact of a refusal conviction can easily reach tens of thousands of dollars over time.
How the Law Defines a Breathalyzer Refusal
Under section 320.15 of the Criminal Code of Canada, the offence 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 obtain a conviction, 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 whether the driver was given a fair opportunity to comply.
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
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.
Before You Plead Guilty, Speak With Our DUI Defence
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 to have the disclosure reviewed carefully.
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.
Refusal cases are technical. Early review can identify weaknesses in the Crown’s case before long-term consequences take effect.
If you are facing a refusal charge in Ontario, call our DUI defence team today at 647-930-0200 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.
