Refusing To Take A Breathalyzer Test in Canada
Have you ever gone out for a fun night out and found yourself pulled over, police lights flashing, being asked to take a breathalyzer test on your way home? The initial response is usually panic. This blog post will address any questions you have when it comes to being asked to take a breathalyzer test and what happens if you refuse to take it.
In such stressful situations, it’s essential to seek immediate legal counsel from an impaired driving lawyer who can provide guidance on your rights, potential consequences, and strategies for your defense.
Can I Refuse To Take a Breath Test?
As an easy rule: do not refuse a breathalyzer. Under section 320.15 of the Criminal Code, refusal of a breathalyzer is a criminal offence. Police cannot force you to take it, but the refusal to do so will result in a criminal charge and therefore, lifelong consequences. Some people assume that if they do not provide a sample, then there is less evidence for a drinking and driving charge. This assumption is incorrect. Refusing to complete a breath test will work against you in court and will weaken your defence for a drinking and driving charge. To summarise, take the breathalyzer.
A common misconception is “I have the right to consult a lawyer first!” This is not the case. Police do not need to give you the opportunity to contact your lawyer upon request for a breath test. However, the police must inform you of the consequence of refusing a breathalyzer.
What Kinds Of Breath Testing Can Police Ask For In Canada?
Police officers can require two types of breath testing in Canada: roadside tests and testing completed at a police station or medical building.
Roadside Tests
Police can now ask you to take a roadside test even if they do not suspect you of impaired driving. This is a mandatory roadside breath test and can occur at random.
In addition to the random roadside breath tests, police will ask you to take a roadside test if they feel you are unable to drive safely. If you are pulled over for a roadside test, you do not have the legal right to consult your lawyer before the test. You can, however, consult a lawyer after the test.
Police will require a sample if there are any signs indicating an inability to drive safely, including:
- The smell of alcohol
- Your behaviours
- Your answers to questions
- Conducting a Standardised Field Sobriety Test to test the physical abilities of the driver
Further Testing Done at the Police Station or Medical Building
Police may take you to a police station or medical facility upon arrest or refusal to give a breathalyzer sample. If they require you to take further testing, you have the right to consult a lawyer and have a lawyer present. Further testing may include a bodily fluid sample, a Drug Recognition Evaluation, or an evidentiary breath-screening test.
Can I Consult A Lawyer Before Taking A Breath Test?
There is no right to consult a lawyer before a roadside test. You can consult your lawyer after completing the roadside test to gain advice. If, however, the testing is done at a police station or medical facility, then you do have a right to consult a lawyer and have them present.
What Are the Consequences of Refusing a Breathalyzer?
Upon refusal, police will charge you with failure or refusal to comply under s. 320.15 of the Criminal Code. A roadside refusal will result in 2 immediate penalties: (1) a 90-day licence suspension and (2) your vehicle being impounded for a minimum of 7 days. If you are convicted of refusal, you will face the lifelong penalty of a criminal record.
What Are the Penalties For Refusing a Breathalyzer?
Penalties Under the Criminal Code
| First Offence | Second Offence | Subsequent Offence | Repeat Offences |
| $2000 fine | Minimum imprisonment of 30 days | Minimum imprisonment of 120 days | Maximum 10 years imprisonment |
Penalties Under the Highway Traffic Act
| First Offence | Second Offence within 10 years | Subsequent Offence within 10 years |
| – Automatic licence suspension for 90 days – $550 administration penalty – $275 vehicle impoundment |
– Automatic licence suspension for 90 days – $550 administration penalty – $275 vehicle impoundment – Mandatory education or treatment program |
– Automatic licence suspension for 90 days – $550 administration penalty – $275 vehicle impoundment – Mandatory education or treatment program – Ignition interlock device for at least 6 months |
How to Defend Breathalyzer Test Charges in Canada?
A refusal to take a breathalyzer can result in serious penalties. The assumption is that not many legal defences are available if you refuse to provide a breath sample; however, this is not the case. It is possible that the police officer(s) requesting the sample made an error in the process.
For example:
- Did the police act within their legal right when demanding the test?
- Was the driver capable of understanding what the officer said to them?
- Did the police explain the driver’s obligation to provide a breath sample?
- Did the police officer abuse the accused rights in any way?
Any of these questions could lead to a successful defence. Compromises and alternative solutions can often be agreed upon before trial with the right defence lawyer on your side.
Contact An Experienced Criminal Lawyer
Have you refused a breath sample and found yourself facing a criminal charge? If so, contact our experienced drug offence lawyers in Toronto. We have great expertise defending charges for refusal of a breath sample. We will help protect your reputation and avoid a criminal record. Contact us today at (416) 658-1818 to start building your defence.
Jonathan Pyzer, B.A., L.L.B., is an experienced criminal defence lawyer and distinguished alumnus of McGill University and the University of Western Ontario. As the founder of Pyzer Criminal Lawyers, he brings over two decades of experience to his practice, having successfully represented hundreds of clients facing criminal charges throughout Toronto.
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