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Refusal to Provide a Sample
In Canada, intentionally failing or refusing to comply with a demand from a police officer
to provide a breath sample for assessing alcohol concentration in a motor vehicle driver’s
body is a criminal offense. In Toronto, Ontario, a person charged with refusing a breath
sample may also face impaired driving charges concurrently.
To mount a defense against an allegation of failing or refusing to provide a breath sample,
we must first determine if the police officer made a lawful demand for the breath sample.
If there was no valid reason for the demand, the accused person can rightfully refuse to
provide a sample. Establishing the legitimacy of the demand depends on a case-specific
analysis, as each situation is unique.
If the demand was lawful, then we try to determine whether the refusal was intentional or
unintentional.
i) Unintentional Failure: Unintentional failure may occur for various reasons, and in such
cases, the accused is not guilty of the offense, as the charge necessitates a deliberate
refusal or intent to fail.
ii) Machinery Malfunction: For example, the breath sample collection device might have
been malfunctioning, or an obstruction in the mouthpiece prevented a suitable sample
from being provided.
iii) Lack of Comprehension: Lack of understanding of the instructions given by the police
officer due to intoxication or language barriers could lead to unintentional refusal. In
these cases, lack of comprehension negates guilt.
iv) Medical Conditions: Certain medical conditions, like asthma or emphysema, might
prevent the accused from providing a suitable sample, resulting in unintentional refusal. In
such instances, the accused would not be found guilty.
If the accused intentionally refused or failed to provide a breath sample, they will be found
guilty unless they can establish a reasonable excuse for their actions.
v) Reasonable Excuse:
Determining the reasonableness of an excuse is always case-specific. What may be
considered reasonable in one case might not hold in another. Some examples of
reasonable excuses, acknowledged in some cases, include:
(a) Medical Grounds: When providing the test poses a health risk or conflicts with
required medical treatment.
(b) Mental Grounds: If the accused was too impaired by drugs or alcohol to comprehend
the demand or its consequences.
(c) Right to Consult with Counsel: Denial of the right to consult with legal counsel in
private before providing the breath sample.
(d) Unreasonable Inconvenience: When the accused must be taken a great distance for
the test or the test cannot be completed within legal time limits.
(e) Lack of Reasonable Probable Grounds: If the police officer lacks "reasonable and
probable grounds" to suspect an offense, there's no requirement for the suspect to take
the test.
(f) Malfunctioning Breathalyzer: If the machine cannot provide an accurate reading of
blood alcohol levels, refusing the test may constitute a reasonable excuse.
Like all Drinking and Driving charges in Canada, a conviction for refusing to provide a
breath sample pursuant to a lawful police demand carries a minimum fine of $1000.00 and
a mandatory minimum license suspension of at least 12 months for first-time offenders. It
also results in an automatic permanent criminal record for first-time offenders.
For further information on Refusal to Provide a Sample and other driving related offences,
contact us now.
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