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.
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.
Police officers can require two types of breath testing in Canada: roadside tests and testing completed at a police station or medical building.
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:
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.
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.
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.
First Offence | Second Offence | Subsequent Offence | Repeat Offences |
$2000 fine | Minimum imprisonment of 30 days | Minimum imprisonment of 120 days | Maximum 10 years imprisonment |
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 |
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:
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.
Have you refused a breath sample and found yourself facing a criminal charge? If so, contact us at Pyzer Criminal Lawyers. 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.