Refusing a Breathalyzer Lawyer Toronto
Pyzer Criminal Lawyers is a criminal defence law firm in Toronto that defends people charged under Section 320.15 of the Criminal Code of Canada, the offence of refusing to provide a breath sample. If you’ve been charged with a breathalyzer refusal in Toronto or anywhere across Ontario, our firm provides the defence you need. We review the evidence and pursue every available legal avenue.
Why Clients in Toronto Choose Pyzer Criminal Lawyers
Our lawyers have defended criminal cases involving impaired driving, the 80 mg or more within two hours offence, and refusal to comply with breath demands at every level of court.
Every breathalyzer refusal case gets the same approach:
Thorough preparation. We review every piece of Crown disclosure and identify every realistic avenue of defence before advising you on anything.
Clear communication. We explain your situation, your options, and the realistically possible outcomes in plain language at every stage.
Determined advocacy. We raise every realistic defence available, pursue all viable arguments, and aim to achieve the best outcome the facts of your case allow.
24/7 availability. Our lawyers are available around the clock to answer your calls.
What a Breathalyzer Refusal Charge Actually Means
Refusing to provide a breath sample, also known as a breathalyzer refusal or DUI refusal charge, is a criminal offence under Section 320.15 of the Criminal Code of Canada. When a peace officer lawfully demands a breath sample from a driver, and that driver fails or refuses to comply without a reasonable excuse, they can be charged with this offence. Section 320.15 is not treated as a lesser offence than impaired driving, and for a first offence, it carries a minimum fine of $2,000.
Most people who contact Pyzer Criminal Lawyers after a breathalyzer refusal charge aren’t sure what they’re actually facing. Our experienced lawyers walk through the facts of your case so you understand exactly where you stand and what a defence may look like.
Situations Where We Defend Breathalyzer Refusal Charges in Toronto
People charged with refusing to provide a breath sample in Toronto come to us in all kinds of circumstances. We provide experienced criminal defence for situations including:
- Refused the roadside Approved Screening Device (ASD) during a traffic stop
- Refused the evidentiary breathalyzer at the police station after arrest
- Refused following a RIDE (Reduce Impaired Driving Everywhere) program stop
- Refused due to confusion about the nature of the demand
- Refused on medical grounds, such as a respiratory condition
- Charged with breathalyzer refusal alongside impaired driving or driving over 80
- Refused a second time after partially complying
- Charged with refusal and have a prior impaired driving or DUI record
The Two Types of Breathalyzer Refusal and Why it Matters
There are two common breath-demand scenarios under Section 320.15. The defence approach for each can differ significantly.
1. Refusing the Roadside Approved Screening Device (ASD)
An Approved Screening Device (ASD) is a handheld breath-testing instrument used by police at the roadside during a traffic stop. Under Bill C-46, which came into force in December 2018, Canadian law now permits police officers to demand a breath sample into an ASD from any driver they have lawfully stopped, without needing any suspicion of alcohol consumption. This is known as Mandatory Alcohol Screening (MAS). Refusing to provide a sample to an ASD is a criminal offence under Section 320.15 of the Criminal Code of Canada, if the demand was lawfully made under Section 320.27, regardless of whether you had consumed alcohol.
The lawfulness of the underlying stop, and whether police followed all required procedures, can still be examined as part of your defence.
2. Refusing the Evidentiary Breathalyzer at the Police Station
The second type of refusal happens after arrest, at the police station. Following a roadside stop, police may arrest a driver and demand two breath samples on an Approved Instrument, commonly called a breathalyzer or Intoxilyzer. Refusing this demand at the station is also charged under Section 320.15. At this point, the right to retain and instruct counsel under Section 10(b) of the Canadian Charter of Rights and Freedoms becomes particularly important. Whether police properly informed you of that right and gave you a genuine opportunity to exercise it is a central question in many breathalyzer refusal defences.
Our experienced lawyers at Pyzer Criminal Lawyers review both the roadside and station-level events in every case.
Penalties for Refusing a Breathalyzer in Ontario
A conviction under Section 320.15 of the Criminal Code of Canada for refusing to provide a breath sample carries mandatory minimum penalties. For a first offence, the mandatory minimum is a $2,000 fine, and the court must also impose a driving prohibition of at least one year and at most three years. A second conviction carries a mandatory minimum of 30 days in jail and a driving prohibition of at least two years and up to 10 years. A third or subsequent conviction within 10 years carries a mandatory minimum of 120 days in jail and a three-year driving prohibition. In all cases, a conviction results in a criminal record.
| Offence History | Mandatory Minimum Fine | Mandatory Minimum Jail | Driving Prohibition |
| First offence | $2,000 | None | 1 year |
| Second offence (within 10 years) | — | 30 days | 2 years |
| Third or subsequent (within 10 years) | — | 120 days | 3 years |
The criminal penalties are only part of it. A breathalyzer refusal charge in Ontario also triggers consequences under the provincial Highway Traffic Act, including an immediate 90-day Administrative Driver’s Licence Suspension (ADLS) and a seven-day vehicle impoundment. That suspension runs separately from any criminal proceedings.
Other potential consequences of a conviction include:
- A permanent criminal record, unless a record suspension is later obtained
- Mandatory participation in Ontario’s ignition interlock program, plus potential relicensing or reduced-suspension eligibility
- Significantly higher automobile insurance premiums
- Criminal inadmissibility to the United States, which affects travel and NEXUS card eligibility
- Potential immigration consequences for non-citizens
- Impact on professional licensing and employment in regulated industries
Possible Defences to a Breathalyzer Refusal Charge in Toronto
A breathalyzer refusal charge is not automatically a conviction. Here’s how we approach the defence.
Was the Police Demand Legally Valid?
For an ASD demand under Mandatory Alcohol Screening, the police must have conducted a lawful stop. For an evidentiary demand at the station, the police must have had reasonable grounds to believe the driver had alcohol or drugs in their body within the preceding three hours. If either condition wasn’t met, the charge may not be sustainable.
Did You Have a Reasonable Excuse?
Section 320.15 of the Criminal Code provides a defence of reasonable excuse for a person who fails to comply with a lawful demand. Courts have recognised physical inability to provide a sample, such as a respiratory condition, asthma, or a recent medical procedure, as a reasonable excuse in some cases. A genuine and reasonable belief that the demand was unlawful may also be considered. Whether a reasonable excuse applies depends on the specific facts of your situation and requires a careful legal assessment.
Were Your Charter Rights Violated?
Violations of the Canadian Charter of Rights and Freedoms are among the most significant defences in breathalyser refusal cases. Common issues include: whether police properly informed you of your right to retain and instruct counsel under Section10(b) of the Charter; whether you were given a reasonable opportunity to contact a lawyer before being required to comply with a demand; whether the stop or detention was arbitrary under Section 9; and whether the demand itself constituted an unreasonable search under Section 8. Where a Charter violation is established, a court may exclude evidence or, in appropriate cases, stay the proceedings.
Technical and Procedural Defences
Police and Crown prosecutors must follow specific procedures when making demands and gathering evidence. Deficiencies in those procedures, including issues with device certification, officer compliance with mandatory warnings, disclosure materials, or the timing of demands, can form the basis of a technical defence. Our lawyers carefully review all available Crown disclosure to identify those issues.
Defending Breathalyzer Refusal Charges Across Toronto and Ontario
Pyzer Criminal Lawyers is based in downtown Toronto and has been defending clients across Toronto and Ontario since 2002. Our lawyers appear regularly in Toronto courts, including:
- Ontario Court of Justice – 361 University Avenue (Old City Hall)
- Ontario Court of Justice – College Park, 444 Yonge Street
- Ontario Court of Justice – North York (1000 Finch Avenue West)
- Ontario Court of Justice – Scarborough (1911 Eglinton Avenue East)
We also defend clients in Brampton, Mississauga, Hamilton, Barrie, Oshawa, Newmarket, and throughout Ontario.
Whether your charge came from a RIDE checkpoint, a routine traffic stop, or a collision investigation, our experienced lawyers are familiar with how these cases are built and how to defend them.
What Happens After a Breathalyzer Refusal Charge in Toronto
Here’s what happens after being charged under Section 320.15 in Toronto.
Release from custody. Most people are released with an undertaking, release order, or other release document. You’ll get a first court date, usually four to eight weeks out. Your Ontario driver’s licence may be suspended for 90 days, and the vehicle may be impounded for 7 days under provincial law.
Retain a lawyer promptly. The earlier you have a criminal defence lawyer, the better. Evidence can be preserved — police notes, in-car video, breathalyzer records, documentation of the demand — but not indefinitely.
Disclosure review. Your lawyer requests and reviews all Crown disclosure — everything the prosecutor intends to rely on. This is where potential problems with the demand, the stop, or Charter compliance get identified.
Pre-trial resolution discussions. Your lawyer engages with the Crown prosecutor to assess whether the charge may be withdrawn, whether the evidence supports resolution, diversion or alternative measures, or whether the matter should proceed to trial.
Trial, if required. If the case proceeds, your lawyer presents your defence — including any Charter applications, challenges to the evidence, and legal arguments — before a judge at the Ontario Court of Justice in Toronto.
What to Expect When You Retain Pyzer Criminal Lawyers
Free Case Evaluation. We review the facts of your situation and explain the charge clearly. We walk through your options and give you straight information about fees. No cost, no obligation.
Immediate Steps. We obtain disclosure from the Crown and start a thorough review of the evidence: recordings, text messages, and witness statements. We identify weaknesses in the Crown’s case and any applicable Charter issues.
Bail and Release Conditions. If you’re under a no-contact order or other restrictive conditions, we assess whether a variation application is appropriate and move quickly if it is.
Defence Strategy. Based on the evidence and the circumstances, we build a defence plan. That might mean negotiating with the Crown Attorney for withdrawal, pursuing a peace bond or discharge, or preparing a trial defence. Whatever approach best serves your interests.
Court Representation. We attend court on your behalf at the applicable Toronto courthouse or wherever your matter is scheduled. In many cases, you won’t need to attend every court appearance personally.
Broader Impact Guidance. We advise you on how to address the wider consequences of the charge, including travel and immigration implications.
Frequently Asked Questions About Breathalyzer Refusal in Toronto
Yes. Refusing to provide a breath sample when lawfully demanded by a peace officer is a criminal offence under Section 320.15 of the Criminal Code of Canada. A conviction results in a criminal record and carries mandatory minimum penalties, including fines, driving prohibitions, and, for repeat offences within 10 years, minimum jail terms.
There is no single answer that applies to every situation. Both refusing to provide a breath sample and driving over 80 are separate criminal offences carrying identical mandatory minimum penalties under the Criminal Code. The right approach depends on the specific facts of your case and what realistic defences may be available. Speaking with a criminal defence lawyer before drawing any conclusions is the right move.
Yes. Breathalyzer refusal charges can be defended on several grounds, including violations of the Canadian Charter of Rights and Freedoms, such as failure to properly advise of the right to counsel, a reasonable excuse for not complying with the demand, an unlawful demand by police, or technical and procedural deficiencies in how the charge was investigated. Whether any specific defence applies depends on the facts of your case.
Under Mandatory Alcohol Screening (MAS), introduced by Bill C-46 in December 2018, police may demand a breath sample using an Approved Screening Device from any driver they have lawfully stopped, without needing any suspicion of alcohol consumption. Refusing this demand is a criminal offence under Section 320.15. The lawfulness of the underlying stop and whether the officer followed all required procedures can still matter for your defence.
When you’re charged with refusing to provide a breath sample, Ontario’s Highway Traffic Act triggers an immediate 90-day Administrative Driver’s Licence Suspension (ADLS). This civil suspension is separate from the criminal proceedings. If convicted, the court also imposes a criminal driving prohibition of at least one year for a first offence. The two suspensions run separately.
A conviction under Section 320.15 of the Criminal Code results in a criminal record that may make you criminally inadmissible to the United States under U.S. immigration law. This can affect the ability to enter the United States, hold a NEXUS card, or travel freely across the border. Successfully defending the charge, or, where a conviction has already occurred, obtaining a record suspension later on, can address these consequences.
Legal fees for defending a breathalyzer refusal charge in Toronto vary depending on the case’s complexity, the number of court appearances, and whether a trial or Charter applications are required. Pyzer Criminal Lawyers offers a free initial case evaluation and provides a clear explanation of fees before any work begins.
Talk to a Toronto Breathalyzer Refusal Lawyer Today
Pyzer Criminal Lawyers has been defending Section 320.15 charges in Toronto and Ontario for over 20 years. Our experienced criminal defence lawyers will review your case, explain your options, and pursue every avenue toward the best outcome for your situation.
Here is what happens when you contact Pyzer Criminal Lawyers:
Free case evaluation: We review the facts you have now, explain the charge(s) against you, and give you a clear next-step plan.
Early file review: We start with disclosure, release terms, and the immediate risks in your case.
Condition strategy: If your release terms are creating serious problems, we assess whether a variation application is appropriate.
Defence and resolution planning: We map the strongest route based on the evidence, your goals, and the court process.
Court representation: We appear in court on your matter and guide you on when your attendance is required.
Wider impact planning: We flag work, travel, and immigration concerns early so they are not left to the end.
