What Happens If You Refuse a Breathalyzer Test in Canada?

Last Updated: October 20, 2023

What Happens If You Refuse a Breathalyzer Test in Canada

Suppose you are pulled over by a police officer for driving under the influence (DUI) or impaired driving.  In that event, a police officer is likely going to ask you to provide a breath sample through a breathalyzer device.  The prospect of such a request may be alarming to some individuals and lead them to ill-advisedly refuse the breathalyzer demand.

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 a breathalyzer test?

A breathalyzer test is a device which is utilized to measure an individual’s blood alcohol concentration (BAC).  The police will utilize the reading to determine if you were operating a vehicle over the legal limit and/or if your ability to operate the vehicle was compromised by alcohol in your system.

How are breathalyzer tests administered?

Police can measure your blood alcohol concentration (BAC) using a breathalyzer.  You will be asked to blow a breath sample into the device and it will register one of three readings:

  • Pass: You will register a ‘pass’ reading if your BAC is below 50 mg
  • Warn: You will register a ‘warn’ reading if your BAC is between 50-79 mg
  • Fail: You will register a ‘fail’ reading if your BAC is at or above 80 mg

If you receive a ‘pass’ reading, you will be free to go.

If you receive a ‘warn’ reading, you will receive certain roadside administrative sanctions, which will vary by province.  Additionally, you may be charged with impaired driving if your ability to drive was compromised by the use of alcohol alone or in combination with drugs.

Lastly, if you receive a ‘fail’ reading, you will receive more severe roadside administrative sanctions and will be charged with impaired driving over 80 mg.

What happens if you refuse a breathalyzer test?

Typically, if you refuse a breathalyzer test, the officer will advise you that should you continue refusing to provide a breath sample, you will be charged with failure or refusal to comply with a demand.

What are the penalties and consequences of refusing a breathalyzer test?

Much like other DUI offences, there are mandatory minimum penalties and roadside sanctions when you refuse a breathalyzer test.

Mandatory Minimum Punishments Under the Criminal Code

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 Under Provincial Legislation

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.

What are the defences to refusing a breathalyzer test?

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

What is a refusal charge in Canada?

A refusal charge in Canada means that you either physically or verbally refused or failed to comply with a demand, such as providing a breath sample to an officer.  The refusal charge will apply if your refuse to provide more than one sample when requested to do so.  This charge applies in all provinces and territories.

Can I 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 potentially file a Charter application to exclude the results of the breathalyzer afterwards.

If I refuse a breathalyzer test will I be charged with impaired driving?

Yes.  Many people are under the false impression that if they refuse a breathalyzer test, there will be no evidence of intoxication, and thereby, they cannot be charged with impaired driving.  However, you do not require a blood alcohol concentration (BAC) reading in order to be charged with impaired driving.  You may be charged on other factors that indicated impairment, such as bloodshot eyes.

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