What Happens If You Refuse A Breathalyzer Test In Ontario?

A Breathalyzer test is a diagnostic device used to estimate the quantity of alcohol in the breath sample of a driver in order to ascertain if the person is safe to drive based on the quantity of alcohol that has been consumed. In Canada and in the Province of Ontario, the legal limit is below 80mg of alcohol in 100ml of blood.

Refusing a breathalyzer test after a traffic stop can have very grave legal consequences for the driver as driving under influence is considered a criminal offence in Canada. A person may be subject to stricter penalties than may have applied for failing a breathalyzer test if they refuse to take a test at the request of the presiding police officer.

This is particularly important as in Canada, police officers have the right to believe that consent to administer a breathalyzer test has been granted even in the absence of a direct verbal agreement based on the circumstances surrounding the suspected offender at the time of the traffic stop.

This article provides information on the legal consequences of refusing a breathalyzer test, and the long term implication such a decision can have on person’s lifestyle and criminal record.

Legal Context of Breathalyzer Tests

Considering the number of fatal accidents and deaths occurring as a result of DUI in Canada, the government has come up with strategies to ensure the safety of road users and individuals residing in Canada. One such strategy is the administration of breathalyzer tests by police officers after a traffic stop if there is reason to suspect that the driver may be under the influence of alcohol or any other psychoactive substance.

Officers are authorized to do this under s.320.27(1) of the Canadian Criminal Code, as well as s.48 of the Ontario Highway Traffic Act (HTA).

A breathalyzer test is a device that can be used to estimate the quantity of alcohol in a person’s bloodstream, based on the quantity of alcohol contained in a breath sample obtained from the device. The person will typically be made to blow into the breathalyzer device for a breath sample to be obtained after an implied consent notice has been read out to the driver by the presiding police officer. Implied consent refers to the implicit agreement to comply with a breathalyzer test simply by operating a vehicle.

Ontario operates the mandatory alcohol screening (MAS) procedure passed into law in Canada in December 2018. This is covered under s.320.27(2) of the Canadian Criminal Code. This law authorizes police officers to demand a breath sample from drivers who are lawfully stopped even without suspicion of the use of drugs and alcohol as a deterrent strategy for DUI. The results from the MAS test may not be sufficient to lay a criminal charge on a driver, but could offer the presiding officer substantial grounds to demand a more sophisticated test.

Immediate Consequences of Refusing a Breathalyzer Test

Refusing to take a breathalyzer test in Ontario can have very dire consequences as this is considered even more strictly than failing a breathalyzer test. A person who refuses to take a test without any cogent reasons may be charged with refusal to comply with a demand and this could lead to severe consequences such as mandatory education programs, mandatory ignition interlock device installation, or even jail term.

For a first time offence, the driver may be subjected to a minimum of 90 days roadside license suspension, as well as vehicle impoundment for a minimum of 7 days whether or not s/he is eventually convicted for DUI.

A minimum fee of about $550 may also be imposed for non-compliance. Under the Ontario HTA, a person may also face a license suspension for 1year for first time offenders, and subsequent suspension for 10years for 2nd time offender.

A person can be arrested on the spot for refusing to comply with a breathalyzer test demand as this is considered a Criminal Offence as stipulated by the Criminal Code. The criminal code imposes a $2,000 fine on first time offenders, whilst 2nd and 3rd time offenders may be liable to 30days or 120 days jail term as may apply.

Consistent re-offence may attract a penalty of 10years imprisonment at the discretion of the presiding judge and on the basis of the pre-existing criminal record of the driver.

Long-Term Consequences of Refusal

The long-term consequences of refusing a breathalyzer test can be very devastating as a person may incur a criminal record which will ultimately place restrictions on employment especially if the person works for a transportation company, as well as international travel opportunities.

Vehicle insurance opportunities may also be affected as refusal to be tested may be considered plausibility for DUI resulting in higher insurance premiums or outright denial of coverage by insurance companies.

Consequently, other professional licenses and permits may also be revoked on the grounds of the ensuing criminal record which will be visible on background checks carried out by employers.

This may have ripple effects on the possibility of gaining employment especially where the offender works with sensitive or vulnerable populations such as children, elderly, or mentally impaired persons, or in the medical profession where s/he may have access to medications that may mimic the activity of alcohol or other psychoactive substances, as refusal to comply with the test may be considered admittance to susceptibility to potential influence of other drugs.

The Legal Process After Refusal

Upon refusing to provide a breath sample, the police officer will read out the rights of offender and then proceed to initiate an arrest and charge the person to court. The driver may be required to make multiple court appearances until a final verdict and sentence is issued by the court. It may be necessary at this point to employ the services of an expert DUI Lawyer in order to come up with a solid defence strategy for the case.

Our Lawyers at Defend Your DUI will explain the legal processes involved as well as help in negotiations with the crown to secure a withdrawal or reduced sentence if the case goes to trial. Furthermore, the case will be assessed to ascertain the reliability of the device, review the arresting officer’s procedural compliance, as well as consider any constitutional violations as outlined in the Canadian Charter of Rights & Freedoms.

Furthermore, in advocating the driver’s decision to refuse the test, strategies such as proving that the demand for testing was unlawful, as well as raising the argument of inability to comply due to an underlying medical condition, may be employed. Some medical conditions that could contribute to inability to perform breathalyzer tests include recent oral operations, severe respiratory conditions, or any mental impairment that may affect ability to follow commands.

Comparing Refusal Penalties To DUI Conviction Penalties

As stated earlier, the penalties for refusal may far outweigh the penalties for failing a breathalyzer test, as the charges may be harsher due to perceived intent to obstruct justice.

Generally, the license suspension duration, fines, and criminal penalties may be stricter for refusal cases than for cases of failed tests especially where there is a pre-existing record of non-compliance or there are records of previous criminal charges. Refusal may also incur harsher sentences for future offences as courts often impose stricter penalties for recurrent offenders who have a history of non-compliance.

Furthermore, when considered in the light of the social stigma, employment and travel restrictions, and financial burden that may be incurred due to higher insurance premiums arising from a criminal conviction and record and being placed on the high-risk driver list by insurance companies, complying with a breathalyzer test request may lead to more favourable social outcomes than refusal as the charges that come with refusal are completely avoidable.

Frequently Asked Questions

What are the Legal requirements for submitting a breathalyzer test

The Canadian Criminal Code, as well as the Ontario Highway Traffic Act (HTA) authorize police officers to demand a breathalyzer test after a lawful search even without suspicion of impairment after an Implied Consent notice has been read out to the driver. A Mandatory Screening Act was passed in 2018 to this effect, thus making it a criminal act to refuse a breathalyzer test.

What happens if I refuse a Breathalyzer test during a traffic stop?

Refusing a breathalyzer test is considered a criminal offence in Ontario and may result in an on the spot arrest, leading to license suspension, fines of about $550 or $2,000 depending on if the person is being charged under parliamentary or provincial law, as well as potential jail term and the ensuing criminal record due to non-compliance.

Can I challenge the results of a breathalyzer test?

Yes, the results of a breathalyzer test can be challenged for a number of reasons such as malfunction of the test equipment, incorrect calibration of the machine, rising blood alcohol content of the driver at the time of testing, and pre-exisiting medical conditions such as asthma, diabetes, acid reflux or Gastroesophageal reflux disease (GERD) which could affect the validity of the test.

Conclusion

The consequences of refusing a breathalyzer test fat outweigh whatever benefits or rights the driver may seek to secure by doing so. The emphasis is here is that refusing a breathalyzer test is a criminal offence both by Parliamentary laws and the Provincial Legislature of Ontario, and choosing not to comply can result in significant and far reaching consequences on the driver. It is best to seek the opinion and services of an expert DUI Lawyer if faced with a refusal to comply charge as a lawyer will have the best strategies to help get the charges dropped or secure a minimal penalty. Book a free consultation now!