What should you do if the police formally demand that you provide a breath sample once you are taken to the station or a hospital? The short answer is that you should comply with the request.

The police have the right to take a breath sample, and you must provide one. If you refuse, you are breaking the law. While the Canadian Charter of Rights guarantees that everyone under arrest has the right to speak to a lawyer, this right doesn’t extend to refusing to provide a breath sample until you have had the chance to talk to a lawyer.

Refusal to Provide a Breath Sample at the Station or Hospital

If you refuse to provide a breath sample, the police can’t force you to take the test through physical means. You will be charged with failure to comply with a demand, a criminal offence under s. 320.15 of the Criminal Code of Canada. If convicted, you will have a criminal record.

You will still face separate charges under the Highway Traffic Act of Ontario for impaired driving or driving under the influence (DUI).

Penalties for Refusing to Comply With Breath Sample Demand

The Criminal Code sets out penalties on conviction for failure or refusal to comply with the demand to provide a breath sample. These penalties are the same as if you were convicted of impaired driving.

Minimum Penalties for Refusing to Comply

The minimum penalties are as follows:

  • For a first offence, you could be liable to pay a fine of up to $2,000 under Section 320.19(4) of the Criminal Code.
  • You could be sent to jail for up to 30 days on conviction for a second offence.
  • For a third (or subsequent) offence, the penalty increases to imprisonment for up to 120 days.

On conviction, you could also face the following penalties:

  • Imprisonment of up to two years less a day if the Crown proceeds by way of a summary offence.
  • Up to ten years in prison if the Crown decides to proceed by way of an indictable offence.

Penalties Under the Highway Traffic Act

Suppose you refuse to provide a breath sample or are convicted under the Criminal Code for refusing to provide one. In that case, you will be subject to the following penalties under the Highway Traffic Act:

  • Your driver’s licence is suspended for 90 days.
  • Your vehicle is impounded for seven days.
  • You will have to pay an administrative penalty.
  • Before you are allowed to drive again, you will have to pay a $275 licence reinstatement fee.

Special penalties exist if you have previously been convicted of this offence.

  • For a second (and subsequent occurrence within ten years), you will be required to attend either an education or treatment program.
  • For a third (and subsequent occurrence within ten years), you will need to use an ignition interlock device for a minimum of six months.

Why You Need an Experienced Criminal Defence Lawyer

If you have been charged with impaired driving or DUI in Ontario, it’s crucial to seek advice from an experienced criminal defence lawyer.

Your impaired driving and DUI lawyer will consider all the evidence. They will think about whether they can contest the breathalyzer results and if the police took any actions that violated your constitutional rights. The consequences of a conviction for impaired driving or DUI can be severe, and this is not a situation where you want to give up and plead guilty to save time. You have the right to legal representation; use it to have an experienced criminal defence lawyer represent you to get the best possible result.

At Kruse Law Firm, we specialize in criminal defence law. Our lawyers have the knowledge and experience to look for any holes or errors in the case against you. We work aggressively to help you avoid a criminal conviction and minimize the consequences of a criminal charge on your life. Contact us today at (519) 739-9427 to arrange your free case review.

By Published On: July 11, 2023Last Updated: October 19, 2023Categories: Blog, Impaired Driving/DUI

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