Failure to Comply with a Breath Demand DUI

Failure to Comply with a Breath Demand DUI in Canada

Driving under the influence (DUI), or impaired driving, charges are quite serious in Canada.  Impaired driving involves operating a vehicle while impaired by alcohol, drugs or a combination of the two.  An individual may be impaired even if their consumption of alcohol or certain drugs is below the legal limit; it matters if the influence of alcohol, drugs or both has compromised their ability to drive.

Under the mandatory alcohol screening regime, the police may make a demand for a breath sample.  It is a criminal offence to refuse to provide a breath sample when an officer makes a legally valid demand.

What is Failure to Comply with a Breath Demand DUI?

Under subsection 320.15(1) of the Criminal Code:

Failure or refusal to comply with demand

320.15 (1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.

A police officer may make a demand under one of two regimes:

1. Section 320.27: Mandatory alcohol screening
2. Section 320.28: Other demands

Section 320.27: Mandatory alcohol screening

Under section 320.27 of the Criminal Code:

Testing for presence of alcohol or drug

320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

(c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

Mandatory alcohol screening

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

While subsection 320.27(1) only requires police officers to have reasonable grounds to suspect that an individual has operated a conveyance while impaired within the three preceding hours, the addition of mandatory alcohol screening under subsection 320.27(2) means police officers no longer require reasonable grounds to suspect to demand a breath sample.

Section 320.28: Other demands

In contrast, section 320.28 of the Criminal Code enlists a higher standard for officers before making a demand:

Samples of breath or blood — alcohol

320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,

(a) require the person to provide, as soon as practicable,

(i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or

(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to take one, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood alcohol concentration; and

(b) require the person to accompany the peace officer for the purpose of taking samples of that person’s breath or blood.

Samples of breath — alcohol

(3) An evaluating officer who has reasonable grounds to suspect that a person has alcohol in their body may, if a demand was not made under subsection (1), by demand made as soon as practicable, require the person to provide, as soon as practicable, the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument.

However, police may still demand a breath sample under subsection 320.28(3) on reasonable grounds to suspect if the demand is made as soon as practicable.

The different provisions under sections 320.27 and 320.28 may seem confusing.  To summarize, essentially police officers require very little, if any, grounds to request a breath sample to test for alcohol.

Penalties for Failing to Comply with a Breath Demand DUI

Much like other DUI offences, there are mandatory minimum penalties and roadside sanctions for failing to comply with a breath demand.

Maximum Punishment

Impaired driving charges carry a mandatory minimum penalty across the country.

While some of the penalties will vary depending if this is your first, second or third offence, the maximum punishment includes:

• Indictment
  • Up to 10-years imprisonment;
• Summary
  • Up to 2-years less a day imprisonment.

Minimum Punishment

The mandatory minimum punishment for impaired driving charges are as follows:

• First offence: $2,000 fine;
• Second offence: 30-day imprisonment; and
• Third offence: 120-day imprisonment.

Roadside Penalties

In addition to the penalties listed above, drivers may receive roadside sanctions for impaired driving.

While the penalties will vary by province, they may include:

• Fine under provincial legislation;
• Licence suspension;
• Vehicle seizure and associated costs;
• Participation in remedial or educational courses; and
• Participation in an Ignition Interlock Device program.

Defences to Failure to Comply with a Breath Demand DUI

While it will ultimately depend on the facts of your case, there are several defences available for failing to provide a breath sample.

Some of which include:

• Challenging the test results
• Late ASD demand
• Submitting a Charter application

Challenging the Test Results

The result of samples of a person’s breath into an approved screening device operated by a qualified technician is conclusive proof of that individual’s BAC.

It is also the case that the results of any blood samples will be conclusive proof of that individual’s blood drug concentration absent any evidence to the contrary.

You may not challenge the evidence of the results of a blood sample by demonstrating:

• The amount of alcohol or drugs you consumed;
• The rate at which the alcohol or drug would have metabolized or absorbed in your body (the “last drink” defence is no longer permissible); or
• A calculation of what your BAC or blood drug concentration would have been when the police took the sample.

Instead, you may challenge whether:

• The device was an “approved screening device”;
• The device was properly calibrated;
• The device was properly operated; or
• Whether the sample was collected as soon as practicable.

Late ASD Demand

As soon as a police officer forms the required grounds, they may demand that you provide a breath or blood sample into an approved screening device (ASD). The demand must be made “as soon as practicable.” Suppose there is a significant delay between when the officers form the grounds to make the demand and issue the demand. In that case, there may be cause to challenge any results from the breath or blood sample test.

Charter Application

Typically, your Charter rights kick in from the moment of your detention.  However, some of your Charter rights are suspended during impaired driving road stops.

Nevertheless, one or more of the following Charter rights may have been violated:

• Section 8: Right to be secure against unreasonable search and seizure
• Section 9: Right not to be arbitrarily detained
• Section 10(b): Right to counsel
• Section 11(b): Right to be tried within a reasonable time

Section 10(b): Right to Counsel

In impaired driving cases, immediately upon arrest, the police must inform the individual of their right to counsel and allow them to exercise that right. If the police did any of the following, then you may be able to exclude any evidence that they collected during the course of the transaction:

• Failure to Provide Rights: The police did not inform you of your right to counsel
• Delay in Providing Rights: The police waited too long to inform you of your right to counsel.
• Failure to Provide Opportunity to Exercise Rights: The police did not allow you to contact counsel.
• Delay in Providing Opportunity to Exercise Rights: The police waited too long to allow you to contact counsel.

The police cannot use any statements you make against you at trial before they inform you of your rights. However, they may use your statements to form the reasonable suspicion necessary to demand roadside tests.

FAQs

Can you refuse a breathalyzer test?

No, it is a criminal offence to refuse a breathalyzer test.  If you have reason to believe the demand for the breathalyzer test was invalid or violated your Charter rights in some fashion, you should still comply with the demand.  It is better to avoid the additional charge of refusing to provide a breath sample and file a Charter application to exclude the results of the breathalyzer afterwards.

What is the penalty for refusing a breathalyzer test in Canada?

There are mandatory minimum penalties for refusing to provide a breath sample under both the Criminal Code and provincial legislation.

Under the Criminal Code, anyone convicted of failure or refusal to provide a breath sample will receive:

• Fine under the Criminal Code: $2,000
• Possible jail time: Minimum of 30 days for a second DUI offence and minimum of 120 days for a third DUI offence
• Fine under provincial legislation;
• Licence suspension;
• Vehicle seizure and associated costs;
• Participation in remedial or educational courses; and
• Participation in an Ignition Interlock Device program.

What does failure or refusal to comply with demand mean?

Failure to comply with a demand refers to both verbal and physical refusal to provide a breath sample.  Moreover, you may be convicted of failure or refusal to comply with a demand if you verbally refuse to provide a sample to the officer when requested or physically refuse to accompany the officer to supply that sample.

According to R v Faulkner (No. 2) (1977), 37 C.C.C. (2d) 217 (N.S. Co. Ct.), you may also be convicted if you refuse to provide more than one sample.

What is the Criminal Code section for failing to provide a breath sample?

Under section 320.15 of the Criminal Code, it is an offence to fail or refuse to provide a breath sample:

Failure or refusal to comply with demand

320.15 (1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.

The requirements for making a demand are listed under sections 320.27 and 320.28.

The Criminal Code punishments for a conviction of failure or refusal to comply with a demand are listed under section 320.19:

Punishment

320.19 (1) Every person who commits an offence under subsection 320.14(1) or 320.15(1) is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of,

(i) for a first offence, a fine of $1,000,

(ii) for a second offence, imprisonment for a term of 30 days, and

(iii) for each subsequent offence, imprisonment for a term of 120 days; or

(b) an offence punishable on summary conviction and liable to a fine of not more than $5,000 or to imprisonment for a term of not more than two years less a day, or to both, and to a minimum punishment of,

(i) for a first offence, a fine of $1,000,

(ii) for a second offence, imprisonment for a term of 30 days, and

(iii) for each subsequent offence, imprisonment for a term of 120 days.

Minimum fine — subsection 320.15(1)

(4) Despite subparagraphs (1)(a)(i) and (b)(i), every person who commits an offence under subsection 320.15(1) is liable, for a first offence, to a fine of not less than $2,000.