A large part of our practice that we focus on at Kruse Law Firm is we represent a lot of clients charged with drinking and driving offences and one of those sub sets of those charges is refusing or failing to comply with a breath demand under the Criminal Code. Now, this really breaks down to two different types of refusal scenarios. One is where you are stopped by the police at the roadside and it’s called a screening test, for example, at a RIDE program. So that is called an approved roadside screening device (“ASD”) and   failing or refusing to comply with an ASD breath demand. There is also failing or refusing to comply with a breath demand to provide Intoxilyzer breath samples at the police station which is the ‘real’ breath where a person gets charged if their breath readings are 80 milligrams of alcohol in 100 mls. of blood or over.   A failure on the ASD test allows the police to arrest an accused and make a demand for Intoxilyzer breath samples, which are normally taken at the police station.

Now, the consequences are pretty severe for this type of offence. Basically, the consequence for refusing a breath sample is the same as for impaired driving or blowing over the legal limit.  I also went through this in detail in another You Tube video.  The consequences are basically the same as for “impaired driving” and “80 or over” cases. In fact, the fine for a refusal conviction is the same as the aggravated fine for blowing over 160.    It’s $2,000.00 fine plus a 30% victim fine surcharge and at least a 1-year minimum driving prohibition. In fact, the driving prohibition could be up to 3 years. The Ministry of Transportation is going to also going to automatically suspend the person’s driver’s licence for 1-year to run concurrently (i.e. at the same time as the court ordered driving prohibition).  A person then may or may not qualify for the Stream A ignition interlock program which I review in other videos and of course their insurance rates will skyrocket and their will be other resulting costs and victim fine surcharges etc. So there are pretty severe consequences to pleading guilty or being found guilty of refusing or failing to provide a breath sample.  

So are there defences to these charges? I will keep it very simple in terms of the defences. Number 1, there has to be a valid breath demand. Now that sounds pretty easy for the crown to prove. The police just read from a pre-printed card and make a valid demand.   However, it is amazing how often the police make a mistake and I will give you one example. The police will read the breath demand which is a formal demand and then they ask the person, “Do you want to provide a breath sample?”  In other words, the police merely ‘ask’ the person to provide a breath sample by saying something like, “Do you want to provide a breath sample.” They don’t say you have to provide breath samples and I am demanding you provide breath samples.    A person is entitled to refuse if it’s merely a wish or a want or an ‘ask’ where it appears the person actually has a choice regarding whether to provide a breath sample or not.  No, I don’t want to provide a breath sample. Will you provide a breath sample? No, you are asking me if I want to and I don’t want to.  In other words, the police are required to make a clear demand that the person has no choice but to comply with the demand or they will be charged with a refusal.  There is extensive case law on this issue and we have won many cases where the police did not make a valid breath demand.  If the police do not make a valid breath demand, a person can refuse to provide a breath sample and have a reasonable chance of winning their case at trial.  There is a difference between a demand and the police merely wanting or wishing that the detainee will provide a breath sample or asking them if they will provide a breath sample.  It really has to be very clear to the person that the police are demanding that they provide a breath same. So the police have to make an unequivocal and clear demand and that includes of course either reading the exact words from their pre-printed breath demand cards when they make the demand or stating words similar to what is printed on the card to make if very clear that they are demanding breath samples and not merely asking the accused if they want to provide a breath sample.   

 The right to counsel under s. 10(b) of the Charter is a very fertile area here as well. If your right to counsel is breached, you can potentially have your refusal excluded at trial.  There are thousands of reported decisions in Canada on right to counsel Charter issues.  It sounds easy for the police to provide an accused with their right to counsel properly and it is not necessarily a cut and dry issue.  Our lawyer studies these cases every day. They come off the computer across the Ontario criminal court system in our offices every day.  Charter applications are served and filed and lawyers across the province including our law firm, win a lot of right to counsel cases where the judge never even gets to consider the breath reading.  The alleged refusal gets excluded at trial (i.e.  thrown out) and the accused wins their refusal charge.

The other defence is where there is a reasonable excuse to refuse to provide breath samples and I will give you examples of a reasonable excuse. A medical condition could be a reasonable excuse. You’ve got broken ribs. You’ve got a compromised lung system. You’ve got asthma. That sort of thing. So there are various defences to refusal or failure to comply with a breath demand charges. A good lawyer can find those defences and give you the legal advice you need. It doesn’t make sense just to go to court and plead guilty without a lawyer. It really pays to have somebody look at your case to try and get you the best result they can or hopefully win your case.  Sometimes we even get careless driving   guilty offers if there is a good defence based on a Charter application, for example. So there is kind of a short synopsis of dealing with refusal charges and the consequences.