What the Code Says
Approved Screening Device Breath Demands
Under the Criminal Code of Canada, where a peace officer (which includes a police officer) has reasonable grounds to suspect that someone has alcohol in their body and has, within the last three hours, operated a conveyance (i.e., a motor vehicle, vessel, aircraft or railway equipment or had the care or control of same), the officer may make a demand requiring the person to immediately provide an approved screening device breath sample (“ASD demand”) at the roadside or other location. They may also demand that they immediately perform certain physical coordination tests prescribed by regulation and accompany the officer for that purpose.
If the police officer has an approved screening device in their possession, they may make an ASD demand without even having a reasonable suspicion that the person has alcohol in their body if the person is operating a motor vehicle. In other words, if the police have a screening device in their police cruiser or in their possession, they do not require a reasonable suspicion that you have consumed alcohol and can make an ASD demand. In this situation, the police can make an ASD demand even if there is no odour of alcohol on your breath or you are not displaying any signs of alcohol impairment.
Intoxilyzer Breath Samples at the Police Station, Hospital, or Other Locations
If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired by alcohol to any degree or is over the legal limit of blood alcohol concentration, they may demand that the person provide samples of their breath to enable a proper analysis to be made by means of an approved instrument (i.e., an Intoxilyzer). Note that failing an approved screening device as described above will provide the police with reasonable grounds to demand an Intoxiliyzer breath sample to be provided at the police station, hospital, or another location.
Anyone who knows that a breath demand has been made and fails or refuses to provide a breath sample without a reasonable excuse is guilty of an offence under section 320.15(1) of the Criminal Code-Failure or Refusal to Comply with a Breath demand
Why You Should Comply With a Request to Provide a Breath Sample
It’s generally in your best interest to comply with the police officer’s request to provide a breath sample on request for the following reasons:
- You may, in fact, be below the legal limit and not be charged with an offence.
- The results of the breath test may give your lawyer an issue to dispute and challenge whether you face any criminal charges.
- There are generally more defences and Charter issues which may assist in winning your case if you blow over the legal limit compared to defences for failing or refusing to provide a breath sample.
Penalties for Refusing a Breath Test
If you refuse to provide a breath sample, the penalty is basically the same as if you took the test and blew over the legal limit, and in some cases, the fine is actually higher depending on how many milligrams you are over the legal limit for an “80 or over” blood alcohol concentration charge. Refusal or failure to comply with a breath demand carries the following penalties:
- A mandatory minimum one-year driving prohibition/suspension for a first-time offender, and the judge can impose up to a three-year driving prohibition at their discretion
- A mandatory minimum $2,000 fine
- Mandatory participation and payment for drinking and driving counselling (i.e., the Back on Track Program)
- Installation of an expensive ignition interlock device in your vehicle
- Expensive licence reinstatement fees
Along with these penalties, you will have the stigma and negative consequences of a criminal record and face skyrocketing insurance premiums for many years.
Fighting the Charge in Ontario
If you have been charged with refusing a breath test, you still have options available. Your best bet is to consult an Ontario impaired driving/DUI defence lawyer for assistance right away. The lawyer can look at the circumstances of your case and explain your options to you. There may be defences and solutions available other than pleading guilty and losing your licence. For example, you may be able to win your case or resolve it to a non-Criminal Code charge of careless driving or other lesser charge under the Highway Traffic Act.
The language used in the charge may seem quite straightforward and state that you “did not provide a breath sample.” There are still complex factual and legal issues that must be proven to convict someone on this charge. A good impaired driving lawyer will carefully analyze the following issues to determine if you can win your case (this list is not exhaustive):
- Were the rights of the accused interfered with in any way by the police? Was there a violation of the accused’s right to counsel, an unlawful detention, or a search and seizure issue under s.8 of the Canadian Charter of Rights and Freedoms?
- Did the police properly make a valid breath demand? Did they clearly explain the obligation to provide a breath sample to the accused?
- Was the driver able to clearly understand the officer’s request for a breath sample?
- Did the police have the requisite grounds and belief for the demand?
- If yes, did the accused fail or refuse to comply with the demand?
- If the accused failed or refused to comply with the demand, did they have a reasonable excuse for the failure or refusal (such as an asthma attack, panic or anxiety etc.), making it impossible to provide a breath sample?
- Did the accused have an injury that would make it dangerous for him or her to provide a breath sample?
- Did the accused have any other valid excuse?
- Was the approved screening device or Intoxilyzer set up and operated properly by the police?
- Was there a demand for any sample of bodily substances other than breath or blood?
- If you refused or failed to comply with a breath demand, did you ask for one last chance to provide a breath sample within a reasonable time period after making the unsuccessful attempts or refusal?
The police have certain legal responsibilities they must follow when they demand an approved screening device or Intoxilyze test. They must ensure that:
- The driver understands what is being demanded of them.
- The driver knows what they need to do to comply.
- The driver was informed of the implications if they do not comply.
- The driver was given a reasonable opportunity to provide breath samples.
If any of these elements were not present, then they can potentially be used by a defence lawyer as a way to defend against the charge.
Impaired Driving/DUI Defence Lawyers in Toronto, Kitchener, London, Windsor and Throughout Ontario
A conviction for refusing a breath test carries extreme criminal and Ontario Ministry of Transportation repercussions. Rather than deciding to just plead guilty to get the matter “over with” and make the charges go away, you owe it to yourself to consult with a defence lawyer who can provide you with personalized advice about your case. The experienced and knowledgeable impaired driving/DUI defence lawyers at Kruse Law will work diligently to make sure you have the best chance of winning and obtain the best possible result for you. Schedule a free meeting and quote, or call us toll-free at 1-800-699-0806 to speak with one of our professionals today.