Is refusing a breathalyzer test worse than failing one?

Many people think refusing a breathalyzer test (which have now been replaced by Intoxilyzers, but most people still refer to the instruments as breathalyzers) will protect them—but under Canadian law, refusal is a criminal offence with serious consequences.

• Refusing a breath sample carries mandatory minimum fines starting at $2,000—double the fine for failing a test if the breath test is under 120 mg%. 

• Both refusal and failure result in a criminal record, licence suspension, and long-term impacts on employment, insurance, and travel.

• Refusal charges eliminate certain legal defences that might apply in “over 80” (blood alcohol over 80 mg) cases.

• Defending a refusal charge can sometimes be more difficult than defending an impaired driving or “over 80” charge, but skilled legal counsel can explore targeted strategies.

If you’re unsure about your rights or what could happen if you ever refuse a breath demand, it’s important to understand the legal consequences before you’re in that situation. Read on to learn how Canadian law treats refusal, why it can be more serious than failing a test, and what steps you should take if you’re ever faced with this decision.    

The short answer: It can be

Why refusing a test is a criminal offence in Ontario

Refusing to provide a breath sample when lawfully demanded by police constitutes a specific criminal offence under Section 320.15 of the Criminal Code. This isn’t simply a failure to cooperate with police—it’s a standalone criminal charge that carries serious consequences regardless of whether you were actually impaired or over the legal limit. The law recognizes that refusing testing undermines the entire system designed to detect and deter impaired driving. When someone refuses or fails to comply with a breath demand,  they are  essentially denying the justice system the evidence needed to determine whether they were driving impaired. Courts treat this as a serious offence because it interferes with law enforcement’s ability to protect public safety. Police officers can demand breath samples in various situations, including routine traffic stops through Mandatory Alcohol Screening, situations where they suspect impaired driving, or following traffic accidents. Once a lawful demand is made, you are  legally required to comply unless you have a reasonable excuse recognized by law. Simple reluctance, fear of the results, or belief that refusal might protect you legally don’t constitute reasonable excuses. The criminal nature of refusal means that even if you weren’t drinking at all, refusing the test creates a criminal charge that can result in conviction, imprisonment, and a permanent criminal record. This harsh approach reflects the legislature’s view that breath testing represents a crucial tool for detecting impaired driving and that refusal undermines public safety initiatives.  

How it compares to an “over 80” or impaired driving charge

The penalties for refusing a breath test often exceed those for failing one, particularly for first-time offenders. While a first-time “over 80” conviction carries a mandatory minimum fine of $1,000 if the accused’s blood alcohol concentration was 80-119 mg%, refusing to provide a sample results in a mandatory minimum fine of $2,000. If an accused is convicted of the separate offence of impaired operation of a motor vehicle, the mandatory minimum fine is only $1,000.   If an accused’s blood alcohol concentration was 120-159 mg%, the mandatory minimum fine is $1,500.  For blood alcohol concentrations of 160 mg% and above the mandatory minimum fine is $2,000.   Therefore,  only for very high blood alcohol concentrations does the mandatory minimum fine for “over 80” convictions equal  the mandatory minimum fine of $2,000 for refusing or failing to comply with a breath demand.   Both charges carry the same driving prohibition periods: a mandatory minimum one year driving prohibition  for first offences, two years for second offences, and three years for subsequent offences. However, the higher financial penalty for refusal reflects the law’s intention to discourage people from avoiding breath testing. From a strategic perspective, refusal charges often present different challenges than “over 80” cases. When someone fails a breath test, defence lawyers can challenge the accuracy of the testing equipment, the procedures followed by police, the calibration of the Alcotest or Intoxilyzer, or the qualifications of the breath technician. These technical defences become irrelevant in refusal cases because no breath test was completed. However, refusal cases open different avenues for defence. Lawyers can examine whether the demand for a breath sample was lawful, whether the accused was properly informed of their obligations and rights, and whether any reasonable excuse existed for the refusal. These defences focus on the circumstances surrounding the demand rather than the technical aspects of breath testing. The long-term consequences remain essentially the same for both types of charges. Criminal records, insurance implications, employment effects, and international travel restrictions apply equally to refusal and “over 80” convictions. The choice between refusing and providing a sample rarely affects these broader life impacts.    

What happens if you refuse a breath test

Immediate legal consequences

The moment you refuse to provide a breath sample when lawfully demanded, several immediate consequences begin. Police will typically arrest you and inform you that you’re being charged with refusing to comply with a demand under Section 320.15 of the Criminal Code. This arrest occurs regardless of whether you show any signs of impairment or whether police have any other evidence of drinking and driving. Your vehicle will likely be impounded immediately, and you’ll face an immediate licence suspension under provincial legislation. In Ontario, this suspension lasts 90 days for a first offence, during which you cannot drive for any reason. The vehicle impoundment typically lasts seven days, and you’ll be responsible for all towing and storage fees. You’ll also be required to attend court to answer the criminal charge. Unlike simple traffic violations that might be resolved through fines, refusal charges require court appearances and can result in criminal convictions if not properly defended. The court process can take months or even years to resolve.  The arrest and charging process often involves being taken to a police station for booking, photographing, and fingerprinting. You will  typically be released on an Officer-in-Charge undertaking if you are a first time offender. Repeat offenders could face a bail hearing where they may or may not be released on bail with more stringent bail conditions.   

Automatic licence suspension and fines

Beyond the criminal charges, provincial legislation creates immediate administrative consequences for refusing breath tests. These administrative penalties operate separately from the criminal charges and apply regardless of the outcome of your criminal case. In Ontario, an  immediate 90-day administrative licence suspension (“ADLS”) begins as soon as you refuse the breath test. This suspension cannot be appealed and continues even if your charge is withdrawn by the Crown within the 90 day ADLS period. During the 90 day ADLS  period, you cannot obtain a temporary or restricted licence for any purpose, including work, medical appointments, or family emergencies. The vehicle impoundment creates immediate practical problems and financial costs. Seven-day impoundment fees can easily reach hundreds dollars when combined with towing charges. If you were driving someone else’s vehicle, the impoundment affects the owner regardless of their involvement in the incident. Administrative monetary penalties may also apply depending on your province and previous record. These fines are separate from any criminal penalties and must be paid to reinstate your driving privileges. The combination of administrative and criminal penalties can create substantial financial burdens that persist long after the initial incident. If you are convicted of impaired driving,  Provincial legislation also requires completion of remedial programs and installation of ignition interlock devices before full driving privileges can be restored. These requirements apply even to first-time offenders and create ongoing costs and inconvenience that can last for years.  

Same penalties—sometimes worse—than a DUI

The criminal penalties for refusing a breath test mirror those for impaired driving and “over 80” charges, with some important differences that often make refusal charges more severe. The mandatory minimum fine structure particularly disadvantages those who refuse testing. For first-time offenders, the mandatory minimum fine of $2,000 for refusal exceeds the $1,000 minimum for both impaired operation and  “over 80” charges for lower breath readings,  as described above. This difference reflects the legislature’s intention to discourage refusal and ensure that avoiding testing doesn’t provide any financial advantage. Courts cannot impose fines below these mandatory minimums regardless of the circumstances of the case or the financial situation of the accused. Subsequent offences carry identical penalties regardless of whether the previous convictions involved refusal or impaired driving. A second conviction for either type of offence results in mandatory minimum imprisonment of 30 days, while third and subsequent convictions require minimum 120-day jail sentences. These escalating penalties apply based on your overall record of impaired driving-related convictions rather than the specific type of charge. The maximum penalties for refusal charges can actually exceed those for simple impaired driving in certain circumstances. If someone refuses a breath test following an accident that causes bodily harm, they face up to 14 years imprisonment. If the accident results in death, the maximum penalty increases to life imprisonment. These enhanced penalties recognize that refusal in serious accident cases particularly undermines the justice system’s ability to determine responsibility and impose appropriate consequences.    

Why some people refuse the test

Understanding why people refuse breath tests helps explain why the law treats refusal so seriously and why these decisions often represent some of the worst mistakes drivers make during DUI stops. Many people refuse breath tests believing that without breath test evidence, prosecutors cannot prove impaired driving charges. This represents a fundamental misunderstanding of Canadian law. Prosecutors can prove impaired driving through officer observations of driving patterns, physical signs of impairment, performance on field sobriety tests, and other evidence that doesn’t depend on breath test results. Refusing the test simply adds a second criminal charge without eliminating the possibility of impaired driving prosecution. Some individuals refuse testing hoping that the passage of time will allow alcohol to metabolize and reduce their blood alcohol concentration. However, this strategy backfires because refusal creates immediate criminal liability regardless of actual blood alcohol levels. The refusal charge proceeds based on the fact that a lawful demand was made and refused, not on the person’s actual level of impairment. Fear of consequences also motivates many refusals. People facing their second or third potential impaired driving charge might refuse testing hoping to avoid the enhanced penalties that come with repeat convictions. Unfortunately, refusal convictions count as impaired driving-related offences for the purpose of escalating penalties, so this strategy provides no protection against enhanced sentencing. Professional drivers, people with security clearances, or individuals in positions of trust sometimes refuse testing believing that avoiding a specific blood alcohol reading might help preserve their employment. However, any criminal conviction related to impaired driving typically triggers the same professional consequences regardless of whether it involves refusal or a specific breath test result. Some refusals result from misunderstanding legal rights and obligations. People might believe they have the right to consult a lawyer before providing a roadside breath sample, or they might think they can refuse roadside testing and only comply with station testing. However, the law requires compliance with all lawful demands for breath samples, and the right to counsel doesn’t apply to roadside screening device tests.    

Can you fight a refusal charge?

Were you properly informed of your rights?

Defending refusal charges often focuses on whether proper legal procedures were followed during the demand for breath samples. Police officers must follow specific protocols when demanding breath samples, and failures in these procedures can provide grounds for successful defence strategies. Officers must clearly communicate the demand for a breath sample and explain the consequences of refusing to comply. This includes informing the accused that refusal constitutes a criminal offence with serious penalties. If the demand was unclear, ambiguous, or not properly communicated, the refusal charge might not be sustainable. The timing and circumstances of the demand also matter significantly. Police cannot make arbitrary demands for breath samples—they must have lawful authority to make the demand based on the specific circumstances. This might involve having reasonable grounds that a driver was operating a vehicle while impaired by alcohol or was over the legal limit, mandatory alcohol screening during a lawful traffic stop, or demands following traffic accidents. Language barriers can affect the validity of demands for breath samples. If the accused didn’t understand the demand due to language difficulties and police failed to provide appropriate translation or clarification, this might constitute grounds for defending against refusal charges. Similarly, if the accused had hearing impairments or other communication difficulties that police didn’t accommodate, the refusal might not be legally valid. The location and manner of the demand can also be relevant to defence strategies. Demands made in inappropriate locations, under threatening circumstances, or without proper identification of police authority might not meet legal requirements. Defence lawyers examine these circumstances to determine whether the demand complied with Charter rights and procedural requirements.  

Was the demand for a test lawful?

The lawfulness of the initial demand for a breath sample represents a crucial element in refusal cases. Police officers cannot arbitrarily demand breath samples—they must have proper legal authority based on specific circumstances recognized by law. For roadside screening device demands, the police do not need a reasonable suspicion that a driver has alcohol in their blood system. Since December 18, 2018, with the introduction of Mandatory Alcohol Screening,  any driver who is lawfully stopped by the police can be required to provide a roadside breath sample into an approved screening device whether they have signs of alcohol impairment or not.  Evidentiary breath test demands at police stations require that officers have reasonable grounds to believe the person committed an impaired driving offence within the preceding three hours. If these reasonable grounds don’t exist, or if more than three hours have passed, the demand might not be lawful. Defence lawyers carefully examine the evidence available to officers at the time they made the demand to determine whether their belief was reasonable and properly founded. The timing of demands becomes particularly important in accident cases or situations where there might be delays between driving and police contact. Officers must establish not only that they have reasonable grounds to believe an offence occurred, but also that it occurred within the time frame that allows for lawful demands. Constitutional Charter issues can also affect the lawfulness of demands. If the demand violates Charter rights against unreasonable search and seizure, or if proper Charter warnings weren’t provided when required, the demand might be excluded from evidence. These constitutional defences require careful analysis of the specific circumstances and timing of police actions.  

Were there medical or language barriers?

Canadian law recognizes that some circumstances might prevent someone from complying with demands for breath samples, creating what’s known as “reasonable excuse” defences. Medical conditions, language barriers, and other legitimate obstacles to compliance can potentially provide defences to refusal charges. Medical conditions that might prevent someone from providing adequate breath samples include respiratory conditions like asthma or COPD, recent dental work or oral surgery, a collapsed lung, broken ribs, or other health issues that make it impossible to provide sufficient breath samples. However, the medical condition must genuinely prevent compliance—minor discomfort or reluctance doesn’t constitute a reasonable excuse. Language barriers can also provide reasonable excuse defences if the accused genuinely didn’t understand what was being demanded or the consequences of refusal. This defence requires more than simple unfamiliarity with legal terminology—it must involve genuine inability to understand the nature and consequences of the demand despite police efforts to communicate clearly. Mental health conditions or cognitive impairments might also affect someone’s ability to understand and comply with demands for breath samples. If the accused lacked the mental capacity to understand the demand or its consequences, this might constitute a reasonable excuse. However, voluntary intoxication typically doesn’t provide a reasonable excuse for refusal. Physical disabilities that prevent someone from operating breath testing equipment might also constitute a reasonable excuse. For example, someone with severe arthritis or other conditions that prevent them from manipulating the breathing apparatus might have legitimate grounds for challenging refusal charges. The key requirement for reasonable excuse defences is that the condition or barrier must genuinely prevent compliance with the demand. Courts examine whether the accused made reasonable efforts to comply despite the barrier and whether police offered appropriate accommodations or alternatives when possible.    

How Kruse Law Firm defends refusal cases

At Kruse Law Firm, we understand that refusal charges create unique challenges and opportunities that require specialized knowledge of both impaired driving law and the specific procedures surrounding breath test demands. Our approach to defending these cases focuses on the circumstances surrounding the demand rather than the technical aspects of breath testing that characterize “over 80” defences. Our investigation begins with a thorough examination of the initial police contact and the events leading to the demand for a breath sample. We analyze whether the traffic stop was lawful, whether officers had proper grounds for making a breath demand, and whether all procedural requirements were met throughout the encounter. This includes reviewing police notes, witness statements, and any available video evidence to build a complete picture of what occurred. We pay particular attention to the communication between police and our clients regarding the demand for breath samples. Did the police make a proper breath demand?  Did the police  clearly explain what was being demanded? Was there a right to counsel violation under s.10(b) of the Charter?  Were the consequences of refusal properly communicated? Was our client given adequate opportunity to understand and comply with the demand? These procedural elements often provide the strongest grounds for defending refusal charges. Our experience with breath test refusal defences allows us to identify technical and procedural issues that other lawyers might overlook. We examine the timing of demands, the authority under which they were made, and whether any Charter violations occurred during the process. We also investigate whether our clients had reasonable excuses for their inability to comply with the demands. We recognize that refusal charges often carry higher mandatory minimum penalties than “over 80” or impaired driving charges, making successful defence even more crucial for our clients. Our strategies focus on challenging the foundational elements of the Crown’s case rather than accepting that refusal occurred and arguing for leniency. When the evidence supports dismissal of charges, we pursue that outcome aggressively. Our understanding of the consequences of first-time DUI and refusal charges helps us advise clients about the full range of potential outcomes and the importance of vigorous defence. We also help clients understand how refusal convictions affect future encounters with the justice system and what steps they can take to minimize long-term consequences. When circumstances support plea negotiations rather than trial, we work to achieve outcomes that minimize the impact on our clients’ lives while addressing the Crown’s concerns about public safety. This might involve negotiating to lesser charges, seeking alternative sentencing options, or structuring plea agreements that consider our clients’ employment, family, and personal circumstances. Our representation philosophy recognizes that refusal charges often result from misunderstanding, panic, or poor advice rather than deliberate attempts to obstruct justice. We work to present our clients’ situations in context while holding the Crown to their burden of proving all elements of the offence beyond a reasonable doubt.    

Frequently asked questions

Do I have the right to call a lawyer before taking a roadside breath test? No, generally you do not  have the right to consult a lawyer before providing a roadside breath sample into an  Approved Screening Device.  There are rare exceptions to this rule,  but this is the general rule. For example, if the police make a roadside breath demand but do not have an roadside alcotest device in their  possession, and another police cruiser takes  30 minutes to bring the device to the scene,  and the accused has a cell phone in their possession, then arguably the accused should be afforded an opportunity to speak to a lawyer using  their cell phone before they provide a breath sample at the  scene. However, typically the right to counsel applies to evidentiary breath tests at the police station, not to roadside screening tests. Demanding to speak with a lawyer before complying with a roadside demand can be interpreted as refusal and result in criminal charges. Can I be charged with both refusal and impaired driving from the same incident? Yes, police can charge you with both refusal to provide a breath sample and impaired driving  arising from the same incident.  You could also be found guilty of both these charges after trial resulting in higher fines than being  charged and convicted of just one offence.  What if I tried to provide a breath sample but couldn’t produce enough air? Genuine inability to provide an adequate breath sample due to medical conditions might constitute a  “reasonable excuse” and provide a defence to refusal charges. However, you must demonstrate that you made reasonable efforts to comply and that a legitimate medical condition prevented successful completion of the test. Simply being nervous or claiming you “can’t breathe into machines” typically doesn’t constitute a reasonable excuse.  In rare circumstances,  extreme anxiety and stress resulting in an inability to provide a breath sample despite repeated attempts,   might result in an acquittal.  However, arguing only stress and anxiety as the reason for an inability to provide a breath sample  at trial,  is a difficult defence to establish and more often than not, results in a conviction for refusal.  Are the penalties the same if I refuse a blood test instead of a breath test? Yes, refusing to provide any type of bodily substance sample when lawfully demanded—whether breath, blood, or urine—carries the same penalties under Section 320.15 of the Criminal Code. The specific type of test demanded doesn’t affect the consequences of refusal, and all forms of refusal are treated with equal seriousness by the courts. Will refusing a breath test help me avoid a DUI conviction? No, refusing a breath test doesn’t protect you from impaired driving charges and actually creates an additional criminal charge. Police can still charge you with impaired driving based on their observations of your driving, your behavior, field sobriety tests, and other evidence. Refusal simply adds a second charge with higher mandatory minimum penalties, making your legal situation worse rather than better. Can I change my mind after initially refusing to take the test? Once you have  clearly refused to provide a breath sample after being properly informed of the demand and consequences, changing your mind later typically doesn’t prevent refusal charges from being laid. The offence is complete when you refuse to comply with a  lawful demand, regardless of any subsequent willingness to provide samples. However, the specific circumstances and timing might affect how prosecutors and courts view the case.  For example, if you refuse and a short time later change your mind and offer to provide a breath sample, depending on the timing of same, this may or may not afford a successful defence at trial that you should have been given a “last chance” to provide a breath sample into a roadside screening device or an Intoxilyzer at the police station.       At Kruse Law Firm, we understand that impaired driving and breath test refusal charges can have devastating consequences that extend far beyond the immediate criminal penalties. Our approach combines detailed knowledge of impaired driving law with practical understanding of how these cases unfold through Ontario’s court system. We provide comprehensive DUI and impaired driving defence services that address both the immediate criminal charges and the broader consequences that affect our clients’ lives. Our team understands the technical aspects of breath testing, the procedural requirements for lawful demands, and the various defence strategies available in  refusal, impaired driving and “over 80” cases. We serve clients throughout Ontario through our strategically located offices. Our Toronto DUI lawyers provide representation throughout the Greater Toronto Area with deep knowledge of local court procedures and Crown prosecutors. Our Kitchener DUI lawyers serve clients throughout Waterloo Region, while our London DUI lawyers offer comprehensive defence services to clients in Southwestern Ontario. For clients in Essex County and the border region, our Windsor DUI lawyers provide experienced representation with understanding of local court dynamics and cross-border implications of impaired driving charges. For immediate consultation regarding breath test refusal charges or any impaired driving matter, contact Kruse Law Firm. Early legal intervention can mean the difference between a manageable situation and consequences that affect the rest of your life.