Refusing a field sobriety test in Canada is a crime—and the penalties can be even more severe than for impaired driving itself. Here’s what you need to know:
- You cannot legally refuse a sobriety test when lawfully demanded by police.
- Refusal leads to criminal charges, licence suspension, vehicle impoundment, and significant fines.
- These penalties are often harsher than those for impaired driving.
- The best approach: comply with the test, then contact a DUI lawyer immediately.
- Legal advice is crucial, as each test type has different rules and possible defences.
Read the full article to learn your rights, understand the risks of refusal, and find out how legal counsel can help protect your future.
The flashing lights in the rearview mirror are just the beginning. A police officer is at your window, and they suspect you’ve been drinking. Then comes the question: “Would you please step out of the car and perform a few tests for me?” Your answer in this moment has significant legal consequences. Here’s what you need to know.
The Short Answer: No, You Cannot Refuse—But Understanding Why Matters
Under Canadian law, you cannot legally refuse a demand for a field sobriety test or any other lawful police demand for sobriety testing. This isn’t just bad advice—it’s a criminal offence under the Criminal Code that can result in penalties identical to, or even harsher than, those for impaired driving itself.
However, the legal landscape around sobriety testing in Canada is more complex than most people realize. Understanding the different types of demands police can make, when they can make them, and what your rights are during the process is crucial for anyone facing these charges.
Legal Requirement to Comply with Police Demands
Since December 18, 2018, when Bill C-46 came into effect, police in Canada have been granted sweeping powers under Mandatory Alcohol Screening (MAS). This means that during any lawful traffic stop, an officer with an Approved Screening Device (ASD) can demand a breath sample without any reasonable suspicion that you’ve consumed alcohol.
But MAS is just one type of demand. Police can also require you to perform standardized field sobriety tests when they have reasonable grounds to suspect impairment.
Refusal as a Criminal Offence Under Section 320.15
Under Section 320.15(1) of the Criminal Code, it’s a criminal offence to fail or refuse to comply, without reasonable excuse, with any lawful demand for sobriety testing. This includes:
- Roadside breath screening using an ASD
- Standardized Field Sobriety Tests (SFSTs)
- Evidentiary breath or blood samples at the police station
- Drug Recognition Evaluations (DREs)
“Reasonable excuse” is an extremely narrow defence. Simply believing you have the right to refuse, wanting to speak to a lawyer first, or feeling the tests are unfair are not considered reasonable excuses under Canadian law.
Police Authority and When Demands Can Be Made
Police have different levels of authority depending on what they’re demanding:
Approved Screening Device (ASD): Can be demanded during any lawful traffic stop without suspicion
Field Sobriety Tests: Require reasonable grounds to suspect alcohol or drug impairment
Evidentiary Testing: Requires reasonable grounds to believe the person is impaired
Understanding these distinctions is critical because the lawfulness of the demand affects potential defences. An experienced DUI lawyer in Ontario can analyze whether the officer had proper legal grounds for each specific demand.
Understanding the Three Types of Sobriety Demands
One of the most critical aspects of defending against refusal charges is understanding exactly what type of demand was made and whether it was lawful.
The Approved Screening Device (ASD) Demand
This is the roadside breathalyzer test using a handheld device. Under Mandatory Alcohol Screening, police can demand this during any lawful traffic stop—even for minor infractions like speeding or failing to signal.
You have no right to speak to a lawyer before complying with an ASD demand. Refusal results in immediate administrative penalties and criminal charges.
The Standardized Field Sobriety Test (SFST) Demand
These are physical coordination tests including:
- Horizontal Gaze Nystagmus (eye tracking test)
- Walk-and-Turn test
- One-Leg Stand test
Police need reasonable grounds to suspect impairment before demanding SFSTs. This is particularly important for drug-impaired driving cases where alcohol screening may be negative but drug impairment is suspected.
The Evidentiary Breath or Blood Sample Demand
This occurs at the police station using an Intoxilyzer or through a blood sample. Police need reasonable grounds to believe you’re impaired before making this demand.
Unlike ASD demands, you have the right to speak with a lawyer without unreasonable delay before providing evidentiary samples. However, this right must be exercised reasonably—you cannot use it to delay or avoid testing.
What Are the Criminal Penalties for Refusing a Sobriety Test Demand?
The penalties for refusal are severe and often surprise people with their harshness.
Federal Criminal Code Penalties
First Offence:
- Mandatory minimum fine of $2,000
- Criminal record
- Mandatory minimum one-year driving prohibition
Second Offence:
- Mandatory minimum 30 days imprisonment
- Mandatory minimum two year driving prohibition up to a maximum of 10 years
Third and Subsequent Offences:
- Mandatory minimum 120 days imprisonment
- Mandatory minimum 3 year driving prohibition up to a lifetime ban in the court’s discretion
Understanding the best and worst case scenario for your DUI charge requires examining the specific circumstances of your case and your prior record.
Immediate Administrative Penalties in Ontario
Beyond criminal penalties, you face immediate administrative consequences:
- 90-day licence suspension (immediate)
- 7-day vehicle impoundment (minimum)
- $550 administrative penalty (first offence)
- Mandatory participation in education and/or treatment programs for repeat offenders
- The possibility of significantly increased insurance premiums
These penalties apply regardless of whether you’re ultimately convicted of the criminal charge.
Additional Long-Term Consequences
A criminal record for refusal creates lasting problems:
- Employment difficulties, especially jobs requiring driving
- Professional licensing issues
- Travel restrictions to other countries
- Requirement for ignition interlock device upon licence reinstatement
The consequences for refusal often exceed those for a first-time impaired driving conviction, which is why many legal experts consider refusal charges particularly serious.
Are There Any Defences Against Refusal Charges?
While refusal charges are serious, they’re not automatically unwinnable. Experienced defence lawyers can identify several potential defences.
Challenging the Lawfulness of the Demand
The most common and effective defence challenges whether the officer had legal authority to make the demand. This involves examining:
- Whether the traffic stop was lawful
- Whether the officer had proper grounds for the specific type of demand
- Whether the demand was made in compliance with proper procedures
- Whether you were properly informed of the consequences of refusal
Medical and Exceptional Circumstances
In rare cases, genuine medical conditions might provide a defence:
- Physical disabilities preventing completion of field sobriety tests
- Medical conditions making breath testing dangerous or impossible
- Language barriers preventing understanding of the demand
However, these defences require substantial medical evidence and are difficult to establish.
Procedural and Charter Violations
Police must follow specific procedures when making demands. Potential defences include:
- Violations of Charter rights
- Improper timing of demands
- Failure to provide proper warnings
- Equipment malfunctions or calibration issues
An experienced DUI lawyer in Toronto can analyze the evidence to identify procedural errors that might provide a defence.
The Role of Checkpoints and Traffic Enforcement
Understanding how and where refusal charges typically arise can help contextualize your situation. Police conduct sobriety testing in various enforcement scenarios.
RIDE Programs and Sobriety Checkpoints
Whether checkpoints effectively reduce drunk driving remains debated, but they’re legal and increasingly common. During RIDE programs, police can demand ASD tests from every driver without any suspicion that they have consumed alcohol.
Understanding the warn range for impaired driving is crucial because even readings below the criminal threshold can result in administrative penalties and provide grounds for further testing.
Traffic Stops and Escalation
Most refusal charges begin with routine traffic stops that escalate when officers detect signs of impairment. The introduction of Mandatory Alcohol Screening means any traffic stop can potentially result in sobriety testing.
What to Do If You’re Charged with Refusal
If you’re facing refusal charges, immediate action is essential.
Don’t Delay in Seeking Legal Representation
Refusal cases involve complex legal and technical issues that require specialized knowledge. Whether you need a DUI lawyer in London, Windsor, or Kitchener, finding experienced counsel quickly is crucial.
Early intervention allows your lawyer to:
- Preserve and analyze evidence
- Identify potential defences
- Challenge administrative penalties
- Begin preparing your defence strategy
Understanding Your Administrative Appeal Rights
You have limited time to challenge administrative penalties like licence suspensions. These deadlines are strict and missing them can result in losing important rights.
Preparing for Court
Refusal charges require careful preparation. Your lawyer will need to:
- Analyze police reports and evidence
- Review video and audio recordings
- Examine equipment calibration records
- Interview witnesses
- Prepare Charter applications if appropriate
Frequently Asked Questions
Q: Is refusing a sobriety test an admission of guilt? A: No, refusal is not legally an admission of guilt for impaired driving. However, refusal itself is a separate criminal offence with its own penalties.
Q: Can I be charged with both refusal and impaired driving? A: Yes, you can face both charges simultaneously.
Q: What if I was willing to take the test but couldn’t complete it due to medical reasons? A: Genuine inability to comply with a breath test or standard field sobriety test due to medical conditions might provide a defence, but this requires substantial medical evidence and legal analysis. The key is whether you willfully refused or were genuinely unable to comply.
Q: Can police make me take a field sobriety test if I’ve already passed the roadside breath test? A: Yes, if they have reasonable grounds to suspect drug impairment or if they believe the ASD result doesn’t accurately reflect your level of impairment.
Q: How can a lawyer possibly defend a refusal charge if I actually refused? A: Many refusal defences don’t dispute that you refused, but rather challenge whether the officer had legal authority to make the demand in the first place. If the demand was unlawful, then refusing it cannot be a criminal offence.
If you’re facing refusal charges, don’t navigate this complex legal landscape alone. The consequences are too severe, and the potential defences too technical, to handle without experienced legal representation. Contact Kruse Law today to understand your options and start building your defence.
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