Defend Your DUI

Failure to Comply with a Breath Demand Laws in Canada

If you have been charged with Failure to Comply with a Breath Demand in Canada, it’s not too late, contact us to speak with a lawyer.

Speak With A Lawyer

Not All DUI Law Firms Are Created Equal

  • Successful Outcomes: Our national team of experienced lawyers have defended clients in over 10,000 cases across Canada. We know how to win cases and have years of legal precedents at our disposal to defend our clients.

  • Trial Lawyers: If we can’t convince the prosecutor to withdraw the charge, we’re not afraid to take the case to trial and show the judge why the case should be dismissed.

  • Flexible Payment Structures: We seek out-of-the-box solutions to make our legal fees affordable and manageable for all budgets.

  • 24/7 Availability: We are available when you need us, even on weekends, holidays and after regular business hours.

DUI-Charges-Saskatchewan

75+

75+

Years of Experience

10+

10+

Defence Lawyers

10k+

10k+

Clients

24/7

24/7

Availability & Support

Contact us to speak with a DUI lawyer

Speak With A Lawyer

What is a failure to comply with a breath demand charge?

Failing to comply with a breath demand is a serious criminal offence in Canada, as outlined in Section 320.15(1) of the Criminal Code. This section makes it an offence for an individual to fail or refuse, without a reasonable excuse, to comply with a lawful demand made by a police officer for a breath sample. The demand can be made if the officer has reasonable grounds to suspect that the individual has alcohol or drugs in their body and has operated a motor vehicle within the preceding three hours.

This offence is a hybrid offence, meaning that the Crown prosecutor can choose to proceed either summarily or by indictment, depending on the severity of the offence and the circumstances involved. If prosecuted summarily, the maximum penalties include a fine of up to $5,000, imprisonment for up to two years less a day, or both. If prosecuted by indictment, the maximum penalties are more severe, with the possibility of imprisonment for up to 10 years, a fine amount at the court’s discretion, or both.

The primary purpose of this law is to ensure that individuals suspected of impaired driving cooperate with law enforcement and provide the necessary evidence to determine their level of impairment. By criminalizing breathalyzer refusal, the law aims to deter individuals from hindering police investigations and to promote public safety.

Examples

Some examples of charges as a result of failing to comply with a breath demand may include the following:

  • Not following the officer’s instructions on how to provide a proper breath sample;
  • Pretending to blow into the approved screening device or approved instrument as part of a roadside screening test without actually providing a sample;
  • Claiming a medical condition that prevents providing a breath sample, without a reasonable excuse or supporting evidence;
  • Tampering with or attempting to interfere with the approved screening device or approved instrument; and,
  • Failing to accompany the officer to the police station for a breath test without a reasonable excuse.

Defences

The defences available to failing to comply with a breath demand charges are entirely dependent on the facts of your case.

However, some defences to failing to comply with a breath demand charges may include:

  • Reasonable excuse, such as a genuine medical condition that prevents providing a suitable breath sample;
  • Improper or inadequate breath sample demands made by the police officer;
  • Lack of mental capacity to understand the nature and consequences of the breath demand; and,
  • Arguing that the accused was not the individual who failed to comply with the breath demand.

Punishments

The punishments for charges related to failing to comply with a demand for a breath sample in Canada are outlined in the Criminal Code and are the same as those for impaired driving offences. As a hybrid offence, the Crown can choose to prosecute the charge summarily or by indictment, depending on the severity of the case. If prosecuted summarily, the maximum penalties include a fine of up to $5,000, imprisonment for up to two years less a day, or both. If prosecuted by indictment, the maximum penalty is imprisonment for up to 10 years.

Overview of the Offence

According to s. 320.15(1) of the Criminal Code:

Everyone commits an offence who, knowing that a demand has been made under section 320.27 or 320.28, fails or refuses to comply, without reasonable excuse, with the demand as soon as practicable.

The Guilty Act (Actus Reus)

The actus reus, or the guilty act, of the offence of failing to comply with a demand for a breath sample consists of two main elements. First, there must be a lawful demand made by a peace officer under section 320.27 or 320.28 of the Criminal Code. These sections allow an officer to demand a breath sample if they have reasonable grounds to suspect that a person has alcohol or drugs in their body and has operated a conveyance within the preceding three hours.

Second, the individual must fail to comply with the demand without a reasonable excuse. This means that the person must have either not provided a breath sample as demanded or provided an insufficient or unsuitable sample. The failure to comply must be intentional, and not due to factors beyond the individual’s control, such as a genuine medical condition or physical inability to provide a sample.

It is important to note that the offence is complete once the individual fails to comply with the demand. The Crown does not need to prove that the individual was actually impaired or had a blood alcohol concentration above the legal limit. The act of failing to comply with a lawful demand is sufficient to establish the actus reus of the offence.

The Guilty Mind (Mens Rea)

The mens rea, or the guilty mind, required for the offence of failing to comply with a demand for a breath sample is knowledge that a demand has been made under section 320.27 or 320.28 of the Criminal Code. This means that the individual must be aware that a lawful demand for a breath sample has been made by a peace officer.

The knowledge requirement is satisfied if the individual has been clearly informed of the demand and understands its nature and purpose. The officer making the demand must convey the information in a manner that is reasonably understandable to the individual, taking into account factors such as language barriers or cognitive impairments.

The offence is one of strict liability, meaning that once the actus reus and the required mens rea (knowledge of the demand) are established, the individual can be found guilty unless they can raise a valid defence.

Failure to Comply with a Breath Demand Charge Defences

The availability and strength of any defence depend entirely on the specific facts of your case. However, there are several possible defences to the offence of failing to comply with a demand for a breath sample in Canada. These include claiming a reasonable excuse for non-compliance, challenging the reasonableness of the officer’s grounds for making the demand, and raising issues related to the proper functioning and maintenance of the breath testing equipment.

Reasonable excuse

One defence to failing to comply with a breath demand is claiming a reasonable excuse for not providing a suitable sample. This may include a genuine medical condition that prevents the individual from providing a sufficient breath sample, such as asthma, chronic obstructive pulmonary disease (COPD), or a respiratory tract infection. The accused must provide evidence supporting their medical condition and demonstrate that it reasonably prevented them from complying with the demand. Other reasonable excuses may include situations where complying with the demand would result in serious harm or danger to the individual or others, such as in cases of duress or necessity.

Lack of reasonable grounds

The accused may also challenge the reasonableness of the officer’s grounds for making the breath demand. For a demand to be lawful, the officer must have reasonable grounds to suspect that the individual has alcohol or drugs in their body and has operated a conveyance within the preceding three hours. If the accused can demonstrate that the officer lacked sufficient grounds to make the demand, the demand may be deemed unlawful, and any evidence obtained as a result could be excluded. Factors that may be considered in assessing the reasonableness of the officer’s grounds include the accused’s driving pattern, physical signs of impairment, and the presence of alcohol or drug paraphernalia.

Malfunctioning or improperly maintained equipment

Finally, the accused may raise issues related to the proper functioning and maintenance of the approved screening device (ASD) or approved instrument (AI) used to collect the breath samples. If the defence can show that the equipment was malfunctioning or not properly maintained, the reliability of the breath test results may be called into question. This could lead to the exclusion of the breath test evidence and potentially an acquittal. However, the burden of proving that the equipment was faulty or improperly maintained rests with the defence, and they must present compelling evidence to support this claim.

Punishments

In Canada, failing to comply with a demand for a breath sample is a hybrid offence, meaning that the Crown prosecutor can choose to proceed either summarily or by indictment, depending on the severity of the case and the accused’s prior record.

If the Crown elects to proceed summarily, the minimum penalty is a fine of $2,000 for a first offence, with a maximum fine of $5,000. The maximum term of imprisonment for a summary conviction is two years less a day. For a second offence, the minimum penalty is 30 days imprisonment, and for a third or subsequent offence, the minimum penalty is 120 days imprisonment.

If the Crown proceeds by indictment, there is no minimum penalty, but the maximum penalty is imprisonment for up to 10 years. Regardless of whether the charge is prosecuted summarily or by indictment, a conviction for failing to comply with a demand for a breath sample also results in a mandatory driving prohibition. The minimum prohibition is one year for a first offence, two years for a second offence, and three years for a third or subsequent offence. The court may also order the offender to participate in an ignition interlock program or to attend an alcohol rehabilitation program.

Provincial and territorial laws may also impose administrative penalties, such as license suspensions, vehicle impoundment, and mandatory education or rehabilitation programs. The severity of these punishments reflects the seriousness of the offence and its potential impact on public safety.

Frequently Asked Questions

What is a “breath demand” under Canadian law?

Under Canadian law, a “breath demand” refers to a lawful request made by a police officer for an individual to provide a breath sample for analysis. This demand can be made under two circumstances outlined in the Criminal Code of Canada.

First, an officer can make a breath demand if they have reasonable grounds to suspect that a person has alcohol or drugs in their body and has operated a vehicle within the preceding three hours. This is known as a roadside screening demand and is typically made using an approved screening device (ASD).

Second, an officer can make a breath demand if they have reasonable grounds to believe that a person has committed an impaired driving offence within the preceding three hours. This demand is usually made at a police station using an approved instrument (AI) and requires the person to provide breath samples that will be used to determine their blood alcohol concentration (BAC).

What happens if I refuse to provide a breath sample to a police officer?

Refusing to comply with a breath demand is a criminal offence under Section 320.15(1) of the Criminal Code of Canada, and the penalties are the same as those for impaired driving. Upon refusal, you will be arrested and charged with the offence of refusing to comply with a breath demand. If convicted, you may face a minimum fine of $2,000 for a first offence, along with a mandatory driving prohibition of at least one year. Repeat offenders face harsher penalties, including mandatory jail time and longer driving prohibitions. It is important to note that refusing to provide a breath sample does not prevent you from being charged with impaired driving, as the refusal itself is a separate offence.

Are there any legal defences for refusing a breath demand in Canada?

Yes, there are some legal defences available for refusing a breath demand in Canada, but they are limited and depend on the specific circumstances of the case. One possible defence is having a reasonable excuse for refusing to provide a breath sample. This could include a genuine medical condition that prevents you from providing a suitable sample, such as a respiratory illness or severe asthma. However, you would need to provide compelling evidence to support your claim.

What are the penalties for failing to comply with a breath demand?

If you are convicted of this offence, you will face a mandatory minimum fine of $2,000 for a first offence, along with a driving prohibition of at least one year. The maximum penalties for a first offence include a fine of up to $5,000 and imprisonment for up to two years less a day.

Repeat offenders face harsher penalties. For a second offence, the mandatory minimum sentence is 30 days in jail, and for a third or subsequent offence, the mandatory minimum is 120 days in jail. The driving prohibitions also increase with each subsequent offence, with a minimum of two years for a second offence and three years for a third or subsequent offence.

Can I be charged even if I was not driving at the time of the breath demand?

Yes, you can be charged with failing to comply with a breath demand even if you were not driving at the time the demand was made. Canadian law allows police officers to make a breath demand if they have reasonable grounds to suspect that a person has alcohol or drugs in their body and has operated a vehicle within the preceding three hours.

This means that even if you are no longer driving when the officer makes the demand, you can still be required to provide a breath sample. For example, if you were involved in a collision and the police arrive after you have exited your vehicle, they can still make a breath demand if they have reason to believe you were operating the vehicle within the past three hours.

How does failing to comply with a breath demand affect my driver’s license?

Failing to comply with a breath demand in Canada can have significant consequences for your driver’s license, in addition to the criminal penalties you may face. If you are convicted of this offence, you will receive a mandatory driving prohibition as part of your sentence. The length of the prohibition depends on whether it is your first, second, or subsequent offence.

For a first offence, you will face a minimum driving prohibition of one year. For a second offence, the minimum prohibition is two years, and for a third or subsequent offence, the minimum prohibition is three years. These prohibitions are mandatory and cannot be reduced or avoided through negotiation with the prosecutor or the court.

Schedule A Free Consultation

Contact us to schedule a free consultation.